Opinion
2013-03-15
Mark PETTIT, Plaintiff–Respondent, v. Randy B. GREEN, et al., Defendants, Six–S Golf, LLC, Six–S Holdings, LLC, Larry Short, doing business as Six–S Golf Course and William F. Short, doing business as Six–S Golf Course, Defendants–Appellants.
Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendants–Appellants. Duke, Holzman, Photiadis & Gresens LLP, Buffalo (Elizabeth A. Kraengel of Counsel), for Plaintiff–Respondent.
Barth Sullivan Behr, Buffalo (Laurence D. Behr of Counsel), for Defendants–Appellants. Duke, Holzman, Photiadis & Gresens LLP, Buffalo (Elizabeth A. Kraengel of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Plaintiff commenced this negligence action to recover damages for injuries he sustained while attending a party hosted by defendant Jesse J. Dewey on premises allegedly owned by Six–S Golf, LLC, Six–S Holdings, LLC, Larry Short, doing business as Six–S Golf Course, and William F. Short, doing business as Six–S Golf Course (collectively, defendants). It is undisputed that other party guests accosted plaintiff, knocked him to the ground, and beat him. Defendants appeal from an order denying their motion for summary judgment dismissing the complaint against them, contending that as a matter of law they owed plaintiff no duty of care. We agree.
In general, “[landowners] are under a common-law duty to ‘control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control’ ” ( Furio v. Palm Beach Club, 204 A.D.2d 1053, 1054, 613 N.Y.S.2d 314, quoting D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896;see Dynas v. Nagowski, 307 A.D.2d 144, 146, 762 N.Y.S.2d 745). Thus, landowners who are not present when a guest engages in harmful conduct and who have neither notice of nor control over such conduct are under no duty to protect others from such conduct ( see Cavaretta v. George, 265 A.D.2d 801, 802, 695 N.Y.S.2d 836), unless the nature of the relationship between the landowners and the party host is such that the landowners, even if absent, are deemed to share in the duty imposed upon the host ( see D'Amico, 71 N.Y.2d at 87–88, 524 N.Y.S.2d 1, 518 N.E.2d 896;Dynas, 307 A.D.2d at 146, 762 N.Y.S.2d 745;see generally Sideman v. Guttman, 38 A.D.2d 420, 429, 330 N.Y.S.2d 263).
Here, defendants met their initial burden on the motion for summary judgment by establishing that they were not present and had neither notice of nor control over the conduct at issue ( see Dynas, 307 A.D.2d at 146, 762 N.Y.S.2d 745). Inasmuch as plaintiff did not establish any special relationship between defendants and Dewey such that they would be charged with Dewey's legal duty to protect plaintiff from harm, he failed to raise a triable issue of fact sufficient to defeat the motion ( see id. at 146–148, 762 N.Y.S.2d 745;Cavanaugh v. Knights of Columbus Council 4360, 142 A.D.2d 202, 204, 535 N.Y.S.2d 275,lv. denied74 N.Y.2d 604, 543 N.Y.S.2d 396, 541 N.E.2d 425).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint against defendants Six–S Golf, LLC, Six–S Holdings, LLC, Larry Short, doing business as Six–S Golf Course, and William F. Short, doing business as Six–S Golf Course, is dismissed.