MITCHELL v. JUST LORRAINE PLACE LLC (2023)

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered on or about June 3, 2021, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant was correctly granted summary judgment dismissing the complaint because it owed no duty of care to plaintiff during her assault by three other bar patrons on the public sidewalk in front of its bar (see Murphy v. Chaos, 26 A.D.3d 231, 810 N.Y.S.2d 39 [1st Dept. 2006];  Del Bourgo v. 138 Sidelines Corp., 208 A.D.2d 795, 796, 618 N.Y.S.2d 59 [2d Dept. 1994], lv dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327 [1995]).  Even if defendant was under a duty of care, the assault was unforeseeable, as the earlier verbal altercation between plaintiff and one of the assailants inside the bar had dissipated, and the parties, who had left the establishment thereafter, independently returned shortly before the sudden attack (see Waldon v. Little Flower Children's Serv., 1 N.Y.3d 612, 614, 776 N.Y.S.2d 532, 808 N.E.2d 852 [2004]).

Contrary to plaintiff's contention, the record did not raise an issue of fact as to whether defendant may be held liable under the doctrine of respondeat superior for the alleged locking of the bar's front door by one of its employees during the assault.  Defendant had no duty to assist plaintiff, and the employee's act did not amount to tortious conduct, especially since it was not the direct cause of plaintiff's injuries (see generally Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [1979];  see also Daily v. Tops Mkts., LLC, 134 A.D.3d 1332, 1333, 20 N.Y.S.3d 487 [3d Dept. 2015], lv denied 27 N.Y.3d 909, 2016 WL 3248245 [2016]).