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Rivera v. 21st Century Restaurant, Inc.

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 1993
199 A.D.2d 14 (N.Y. App. Div. 1993)

Summary

In Rivera, the Appellate Division, First Department affirmed that the injury suffered by the plaintiff on the defendant's premises was neither unforeseeable nor unexpected, given that the defendant had notice of criminal activity on its premises twenty minutes prior to an assault but failed to summon the police.

Summary of this case from Bensbeur v. Rihga Royal Hotel

Opinion

December 2, 1993

Appeal from the Supreme Court, Bronx County (Jerry L. Crispino, J.).


The IAS Court properly denied the defendant's motion seeking a directed verdict as to liability based upon the court's determination that the plaintiff had established a prima facie case for submission to the jury. Although a landlord or owner of a public establishment has no duty to protect its patrons from unforeseeable and unexpected assaults nor to take any protective measures unless there was a foreseeable risk of harm from criminal activities of third persons on the premises (Camacho v Edelman, 176 A.D.2d 453, 454), a landowner nevertheless has the duty to control the conduct of persons present on its premises when it has the opportunity to control or is reasonably aware of the necessity for such control (Lindskog v Southland Rest., 160 A.D.2d 842, 843).

The IAS Court properly determined that the evidence adduced at trial established that the assault upon the plaintiff on the defendant's premises was neither unforeseeable nor unexpected and that the facts support the jury's finding that the defendant's negligence in failing to promptly summon the police, although the defendant had notice of criminal activity on its premises 20 minutes prior to that assault, was a proximate cause of the plaintiff's injuries.

Nor did the IAS Court err in denying plaintiff's motion seeking to set aside the jury verdict awarding the plaintiff $115,000 in damages only for past pain and suffering, where, as here, there was substantial evidence showing that the plaintiff returned to work only two months after sustaining his injury, resumed most of his daily activities, and consistently failed to attend scheduled physical therapy sessions recommended by his physician. In those circumstances, the jury verdict did not deviate materially from what would be reasonable compensation for the injury sustained by the plaintiff (CPLR 5501 [c]; compare, Petryszyn v Di Fulvio, 185 A.D.2d 405 [3d Dept 1992]).

We have reviewed the remaining claims and find them to be without merit.

Concur — Sullivan, J.P., Carro, Rosenberger, Ross and Asch, JJ.


Summaries of

Rivera v. 21st Century Restaurant, Inc.

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 1993
199 A.D.2d 14 (N.Y. App. Div. 1993)

In Rivera, the Appellate Division, First Department affirmed that the injury suffered by the plaintiff on the defendant's premises was neither unforeseeable nor unexpected, given that the defendant had notice of criminal activity on its premises twenty minutes prior to an assault but failed to summon the police.

Summary of this case from Bensbeur v. Rihga Royal Hotel
Case details for

Rivera v. 21st Century Restaurant, Inc.

Case Details

Full title:VICTOR RIVERA, Respondent-Appellant, v. 21ST CENTURY RESTAURANT, INC.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 2, 1993

Citations

199 A.D.2d 14 (N.Y. App. Div. 1993)
604 N.Y.S.2d 106

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