Tannenbaum v. Town of Hempstead

255 A.D.2d 309, 680 N.Y.S.2d 268, 1998 N.Y. App. Div. LEXIS 11587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant Town of Hempstead appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated October 28, 1997, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Town of Hempstead, and the action against the remaining defendant is severed.

The plaintiff commenced the instant action to recover damages for injuries he allegedly sustained when he was assaulted by the defendant Ariel Sanchez after playing basketball with him and his friends in a Town of Hempstead park. The court denied the Town’s motion for summary judgment dismissing the complaint insofar as asserted against it.

The Town had no duty to protect the plaintiff against unforeseeable and unexpected assaults (see, Scotti v W.M. Amusements, 226 AD2d 522). The evidence in the instant record demonstrates that the assault upon the plaintiff was spontaneous and unexpected. Therefore, the Town was entitled to summary judgment (see, Scotti v W.M. Amusements, supra; see also, Thomas v United States Soccer Fedn., 236 AD2d 600; Elba v Billie’s 1890 Saloon, 227 AD2d 438; Karp v Saks Fifth Ave., 225 AD2d 1014). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.