ROBERTS v. NOSTRAND HILLEL FOOD INC (2011)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated March 2, 2011, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint is granted.

The plaintiff was a patron in the defendants' restaurant when he became engaged in a verbal dispute with another customer. The two exited the restaurant, at which point an individual alleged to be a restaurant employee tried to break up the altercation. The plaintiff then allegedly attempted to re-enter the restaurant; his next recollection was waking up in a hospital approximately two weeks later, having sustained injuries to his head. The plaintiff commenced this action alleging that the defendants were negligent in failing to provide adequate security on the premises.

“[A] landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion” (Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493; see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 519–520, 429 N.Y.S.2d 606, 407 N.E.2d 451).

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the acts committed by the other customer against the plaintiff were not foreseeable. They had no knowledge or information about that customer that would put them on notice of his propensity to assault the plaintiff, nor any notice of prior similar incidents (see Royston v. Long Is. Med. Ctr., Inc., 81 A.D.3d 806, 807, 917 N.Y.S.2d 253; Robinson v. Sacred Heart School, 70 A.D.3d 666, 667, 895 N.Y.S.2d 136; Guo Hua Wang v. Lang, 47 A.D.3d 766, 767, 849 N.Y.S.2d 654; Sepulveda v. Empire of Hempstead, 6 A.D.3d 603, 604, 774 N.Y.S.2d 825; Scheir v. Lauenborg, 281 A.D.2d 530, 530–531, 722 N.Y.S.2d 63; Lindskog v. Southland Rest., 160 A.D.2d 842, 843, 554 N.Y.S.2d 276).

In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Royston v. Long Is. Med. Ctr., Inc., 81 A.D.3d at 807, 917 N.Y.S.2d 253; Robinson v. Sacred Heart School, 70 A.D.3d at 667, 895 N.Y.S.2d 136; Guo Hua Wang v. Lang, 47 A.D.3d at 767, 849 N.Y.S.2d 654; Sepulveda v. Empire of Hempstead, 6 A.D.3d at 604, 774 N.Y.S.2d 825; Scheir v. Lauenborg, 281 A.D.2d at 531, 722 N.Y.S.2d 63; Lindskog v. Southland Rest., 160 A.D.2d at 843, 554 N.Y.S.2d 276).

Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.