Davis v. City of New York

183 A.D.2d 683, 584 N.Y.S.2d 64, 1992 N.Y. App. Div. LEXIS 7379

Opinion

— Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered February 25, 1991 granting defendants 5167-161 Street Restaurant Corporation and McDonald’s Corporation’s motion for summary judgment dismissing plaintiff’s complaint and all cross-claims asserted against them, unanimously affirmed, without costs.

On January 11, 1987 at 12:30 a.m., plaintiff was seriously injured when he was shot three times by another patron, an off-duty correction officer, following a verbal confrontation at defendants movants’ McDonald’s Restaurant located on 161st Street and River Avenue, across the street from Yankee Stadium. At the time of the officer’s criminal act, the restaurant was crowded with patrons and there was an absence of security personnel.

While movants defendants restaurant owners were required to exercise reasonable care for the protection of patrons on their premises (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507), the unexpected altercation between plaintiff and the off-duty correction officer is not a situation that movants could reasonably have been expected to have anticipated or prevented (Garofalo v Henrietta Italia, 175 AD2d 580; see, Iannelli v Powers, 114 AD2d 157, lv denied 68 NY2d 604). There was no evidence of a pattern of criminal activity (see, Camacho v Edelman, 176 AD2d 453; Carroll v Ar De Realty Corp., 167 AD2d 216) or of even one similar incident involving different patrons (cf., Lindskog v Southland Rest., 160 AD2d 842). In view of plaintiff’s failure to raise a material triable issue of fact concerning whether movants owed a duty to protect plaintiff against such an unexpected and sudden assault, the IAS court properly granted the movants’ motion. Concur — Sullivan, J. P., Milonas, Kupferman, Ross and Smith, JJ.