LOPEZ v. BARRETT INC KFC (2007)

Plaintiffs commenced this action seeking damages for injuries sustained by Joel Lopez (plaintiff) during a robbery at a restaurant owned and/ or operated by Barrett T.B. Inc., doing business as Barrett Brothers Management, KFC of America, Inc., Delta Sonic Carwash Systems, Inc. and Nathan Benderson, individually and doing business as Benderson Development Company, Inc. (collectively, defendants).

 Contrary to the contention of defendants, Supreme Court properly denied their motion seeking, inter alia, summary judgment dismissing the complaint against them.   Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiffs raised triable issues of fact whether, based on past experience, defendants “knew or should have known of the probability of conduct on the part of third persons which was likely to endanger the safety of those lawfully on the premises” (Farrell v. Vega, 303 A.D.2d 716, 717, 756 N.Y.S.2d 871;  see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294, 598 N.Y.S.2d 160, 614 N.E.2d 723, rearg. denied 82 N.Y.2d 749, 602 N.Y.S.2d 807, 622 N.E.2d 308).   We further conclude that the likelihood of criminal conduct was not so extraordinary and unforeseeable as to break the causal connection between plaintiff's injuries and defendants' conduct as a matter of law (cf. Flores v. Dearborne Mgt., Inc., 24 A.D.3d 101, 102, 806 N.Y.S.2d 478;  Buckeridge v. Broadie, 5 A.D.3d 298, 774 N.Y.S.2d 132;  Cerda v. 2962 Decatur Ave. Owners Corp., 306 A.D.2d 169, 169-170, 761 N.Y.S.2d 220;  Rivera v. New York City Hous. Auth., 239 A.D.2d 114, 115, 657 N.Y.S.2d 32).

 We conclude, however, that the court erred in granting the cross motion of plaintiffs seeking permission to conduct additional discovery after they “inadvertently” filed the note of issue and statement of readiness, and we therefore modify the order accordingly.  “[W]here, as here, additional discovery is sought after plaintiff[s] ha[ve] filed a note of issue, the party seeking additional discovery must demonstrate that ‘unusual or unanticipated circumstances develop[ed] subsequent to the filing ․ which require additional pretrial proceedings to prevent substantial prejudice’ ” (Kephart v. Burke, 306 A.D.2d 924, 925, 762 N.Y.S.2d 320, quoting 22 NYCRR 202.21[d];  see Di Matteo v. Grey, 280 A.D.2d 929, 930, 721 N.Y.S.2d 182).   Plaintiffs failed to meet that burden with respect to the discovery sought in the cross motion.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion and as modified the order is affirmed without costs.

MEMORANDUM: