GRAY v. FOREST CITY ENTERPRISES INC (1997)

Supreme Court properly granted defendants' motions for summary judgment dismissing the complaint.   Plaintiffs allege that defendants, the owner of a shopping mall and the owner of a store in the mall, were negligent in failing to provide adequate lighting and security to protect Karen Gray (plaintiff).   An unidentified assailant pulled plaintiff to the ground as she was walking past the store's loading dock on her way to a vehicle in the mall parking lot.   Defendants met their initial burden to establish their defense “ ‘sufficiently to warrant the court as a matter of law in directing judgment’ ” in [their] favor” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718, quoting CPLR 3212[b] ), and plaintiffs failed to raise a triable issue of fact.

“[E]ven where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience ‘that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor’ (Restatement, Torts 2d, § 344, comment f )” (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451).   Defendant J.C. Penney Company, Inc., established that it had no notice of a prior criminal history of muggings outside its store.   Evidence that the owner of the mall had notice of six prior criminal incidents at the mall, none of which occurred by the loading dock, does not establish that an attack upon plaintiff was reasonably foreseeable (see, Leyva v. Riverbay Corp., 206 A.D.2d 150, 620 N.Y.S.2d 333;  Surini v. Adamowicz, 200 A.D.2d 737, 607 N.Y.S.2d 113, lv. denied 83 N.Y.2d 755, 613 N.Y.S.2d 127, 635 N.E.2d 296;  Golombek v. Marine Midland Bank, 193 A.D.2d 1113, 598 N.Y.S.2d 891).   The fact that conduct is conceivable does not render it foreseeable (see, Ascher v. Garafolo Elec. Co., 113 A.D.2d 728, 732, 493 N.Y.S.2d 196, affd. 67 N.Y.2d 637, 499 N.Y.S.2d 681, 490 N.E.2d 548;  Cercone v. Norstar Bank [appeal No. 1], 199 A.D.2d 987, 608 N.Y.S.2d 17, lv. denied 83 N.Y.2d 756, 614 N.Y.S.2d 386, 637 N.E.2d 277;  Golombek v. Marine Midland Bank, supra).

Order unanimously affirmed without costs.

MEMORANDUM: