Larrabee v. Marine Midland Bank-Central

55 A.D.2d 1018, 391 N.Y.S.2d 214, 1977 N.Y. App. Div. LEXIS 10363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1977
• Status: Published

Opinion

Order unanimously reversed, without costs, motion granted, and complaint dismissed. Memorandum: Decedent was employed by Janitorial Service, Inc., a company which had contracted to clean and maintain a branch of defendant’s bank in Northern Lights Shopping Center, Syracuse, New York. For that purpose, Janitorial Service, Inc., was supplied with keys to unlock the bank doors and to disconnect the alarm and its employees were permitted to enter the bank after banking hours to perform cleaning services. Decedent entered the bank for this purpose on August 23, 1974 and sometime after 8:30 p.m. or 9:00 p.m. when the last bank employee left, decedent was shot and killed. His body was found the next morning in the ladies’ rest room of the bank. The unverified complaint alleges that his death was caused by various negligent acts on the part of the defendant. Plaintiff submitted no evidence in response to this summary judgment motion substantiating a theory of recovery against the bank even under the more liberal proof requirements prevailing in death actions (Wank v Ambrosino, 307 NY 321; Noseworthy v City of New York, 298 NY 76, 80), and his failure to move for discovery or otherwise attempt to obtain some evidence of actionable negligence suggests that he has no provable cause of action (see Silinsky v State-wide Ins. Co., 30 AD2d 1, 5-6). (Appeal from order of Onondaga Supreme Court — dismiss complaint.) Present — Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.