Opinion
March 10, 1998
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
The tossing of a potato, which struck plaintiff in the face, by an unidentified patron of defendant was an unexpected and unforeseeable occurrence that defendant had no opportunity to control, and for which it therefore cannot be held liable. There is no evidence that the patron had ever exhibited dangerous or violent behavior before the incident, and immediately after she did, by hitting the manager with a sack of potatoes, the manager went to call the police, and it was while he was on his way to the telephone that the patron threw a potato at plaintiff (cf., Rivera v. 21st Century Rest., 199 A.D.2d 14).
Concur — Sullivan, J. P., Milonas, Rubin and Tom, JJ.