Williams v. TeDave Enterprises, Inc.

Appellate Division of the Supreme Court of New York

Williams v. TeDave Enterprises, Inc.

242 A.D.2d 861, 662 N.Y.S.2d 913, 1997 N.Y. App. Div. LEXIS 10386

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1997

StatusPublished

Cited by7 cases

This text of 242 A.D.2d 861 (Williams v. TeDave Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. TeDave Enterprises, Inc., 242 A.D.2d 861, 662 N.Y.S.2d 913, 1997 N.Y. App. Div. LEXIS 10386 (N.Y. Ct. App. 1997).

Pincite

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the complaint against TeDave Enterprises, Inc., also known as Checker’s (defendant). Although a landowner has a duty to control the conduct of persons on his premises when he has the opportunity to control or is reasonably aware of the necessity to control (see, Lindskog v Southland Rest., 160 AD2d 842, 843; Huyler v Rose, 88 AD2d 755, appeal dismissed 57 NY2d 777), “[t]here is no legal duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” (Silver v Sheraton-Smithtown Inn, 121 AD2d 711). The alleged assault against plaintiff was “an unexpected altercation between patrons” (Lindskog v South-land Rest., supra, at 843) and was “not a situation which could reasonably be expected to be anticipated or prevented” (Silver v Sheraton-Smithtown Inn, supra, at 712).

Plaintiffs reliance on Cittadino v DeGironimo (198 AD2d 801) is misplaced. There, the conduct of the assailant was more pronounced and violent than the brief shouting match described by plaintiff.

The court also properly dismissed the Dram Shop cause of action; defendant met its initial burden and plaintiff failed to come forward with evidence in admissible form to show that the assailant was visibly intoxicated or indeed had been served alcohol at the restaurant (see, Costa v 1648 Second Ave. Rest., 221 AD2d 299). (Appeal from Order of Supreme Court, Oneida County, Tenney, J.—Summary Judgment.) Present—Denman, P. J., Pine, Balio, Boehm and Fallon, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the complaint against TeDave Enterprises, Inc., also known as Checker’s (defendant). Although a landowner has a duty to control the conduct of persons on his premises when he has the opportunity to control or is reasonably aware of the necessity to control (see, Lindskog v Southland Rest., 160 AD2d 842, 843; Huyler v Rose, 88 AD2d 755, appeal dismissed 57 NY2d 777), “[t]here is no legal duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” (Silver v Sheraton-Smithtown Inn, 121 AD2d 711). The alleged assault against plaintiff was “an unexpected altercation between patrons” (Lindskog v South-land Rest., supra, at 843) and was “not a situation which could reasonably be expected to be anticipated or prevented” (Silver v Sheraton-Smithtown Inn, supra, at 712).

Plaintiffs reliance on Cittadino v DeGironimo (198 AD2d 801) is misplaced. There, the conduct of the assailant was more pronounced and violent than the brief shouting match described by plaintiff.

The court also properly dismissed the Dram Shop cause of action; defendant met its initial burden and plaintiff failed to come forward with evidence in admissible form to show that the assailant was visibly intoxicated or indeed had been served alcohol at the restaurant (see, Costa v 1648 Second Ave. Rest., 221 AD2d 299). (Appeal from Order of Supreme Court, Oneida County, Tenney, J.—Summary Judgment.) Present—Denman, P. J., Pine, Balio, Boehm and Fallon, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

242 A.D.2d 861, 662 N.Y.S.2d 913, 1997 N.Y. App. Div. LEXIS 10386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-tedave-enterprises-inc-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack