SCHWAB v. GADSDEN

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Supreme Court, Appellate Division, Second Department, New York.

Gregory SCHWAB, Appellant, v. Theodore GADSDEN, et al., Defendants, Charles Massey, et al., Respondents.

Decided: August 20, 2001

SONDRA MILLER, J.P., HOWARD MILLER, ROBERT W. SCHMIDT and BARRY A. COZIER, JJ. Sherry & O'Neill, New York, N.Y. (John A. Hyland and Robert O'Neill of counsel), for appellant. Smetana & Schwartz, Melville, N.Y. (Arthur Simuro of counsel), for respondents Charles Massey, Miller Tabak Hirsch & Co., MTH Holdings, Inc., MTH Co., Jeffrey David Miller, Jeffrey Steven Tabak, and Gary Dean Hirsch. Curtis Vasile Devine & McElhenny, Merrick, N.Y. (Robert M. Smith and Hugh Larkin of counsel), for respondents Mitch Winkeleer and Kay Winkeleer.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated March 30, 2000, which granted the motion of the defendants Charles Massey, Miller Tabak Hirsch & Co., MTH Holdings, Inc., MTH Co., Jeffrey David Miller, Jeffrey Steven Tabak, and Gary Dean Hirsch for summary judgment dismissing the complaint insofar as asserted against them, and the separate motion of the defendants Mitch Winkeleer and Kay Winkeleer for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff allegedly was assaulted during a basketball game by two members of the opposing team, the defendants Theodore Gadsden and Andrew Richards.   Contrary to the plaintiff's contentions, the Supreme Court correctly determined that he failed to prove that the organizers of the league, or the sponsors of the team for which Gadsden and Richards played, should have foreseen the assault.   Accordingly, they can not be held liable for the spontaneous criminal acts of Gadsden and Richards (see, Tannenbaum v. Town of Hempstead, 255 A.D.2d 309, 680 N.Y.S.2d 268;  Thomas v. United States Soccer Fedn., 236 A.D.2d 600, 653 N.Y.S.2d 958).

The plaintiff's remaining contentions are without merit.

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