Opinion
2012-10-9
Adam ULLRICH, Plaintiff–Respondent, v. BRONX HOUSE COMMUNITY CENTER, et al., Defendants–Appellants.
Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for appellants. Wingate, Russotti & Shapiro, LLP, New York (William P. Hepner of counsel), for respondent.
Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for appellants. Wingate, Russotti & Shapiro, LLP, New York (William P. Hepner of counsel), for respondent.
SWEENY, J.P., CATTERSON, ACOSTA, FREEDMAN, ROMÁN, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered January 12, 2012, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Dismissal of the complaint is warranted in this action where plaintiff was injured during a basketball game at defendants' facility, when another player punched him in the jaw. Plaintiff and his father both testified that the assault was unprovoked and unanticipated, and that there was no warning of an impending assault. Thus, by plaintiff's own account, the assault occurred in such a short span of time that even the most intense supervision could not have prevented it ( see e.g. Espino v. New York City Bd. of Educ., 80 A.D.3d 496, 915 N.Y.S.2d 66 [2011],lv. denied17 N.Y.3d 709, 930 N.Y.S.2d 554, 954 N.E.2d 1180 [2011] ).
Plaintiff's father testified that he observed a dispute on the basketball court involving the assailant and other club members several months earlier. However, plaintiff failed to show that the notice was sufficiently specific for defendants to have reasonably anticipated the assault upon plaintiff ( see Kamara v. City of New York, 93 A.D.3d 449, 450, 940 N.Y.S.2d 53 [2012] ). Defendants' failure to terminate the assailant's club membership after the earlier incident was not the proximate cause of the assault, which was an intentional and unforeseeable act of a third party ( see Sugarman v. Equinox Holdings, Inc., 73 A.D.3d 654, 655, 901 N.Y.S.2d 615 [2010] ).
The Decision and Order of this Court entered herein on June 19, 2012, is hereby recalled and vacated ( see M–3073 decided simultaneously herewith).