MURPHY v. Amin Kallimini, et al., Defendants.

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

Joseph MURPHY, Plaintiff-Appellant, v. CHAOS, et al., Defendants-Respondents, Amin Kallimini, et al., Defendants.

Decided: February 16, 2006

BUCKLEY, P.J., SULLIVAN, WILLIAMS, GONZALEZ, CATTERSON, JJ. Julien & Schlesinger, P.C., New York (Michael S. Schlesinger of counsel), for appellant. French & Rafter, LLP, New York (Joseph A. French of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered November 12, 2004, which granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

 No triable factual issue is raised as to whether defendant Kallimini was intoxicated or impaired at the time of his altercation with plaintiff, much less as to whether defendant nightclub Chaos furnished Kallimini with alcohol or caused him to become intoxicated prior to the altercation.   Accordingly, summary judgment was properly granted dismissing plaintiff's claims against Chaos under General Obligations Law §§ 11-100 and 11-101 (see Sherman v. Robinson, 80 N.Y.2d 483, 487-488, 591 N.Y.S.2d 974, 606 N.E.2d 1365 [1992] ).   Nor was Chaos under a duty to protect plaintiff during the sudden, brief assault, which took place on the public sidewalk some 15 feet from the club entrance as patrons left the club at the end of the night, particularly since there is no evidence that anything transpired inside the club which might have put the club on notice that there was a risk of such an altercation (see Del Bourgo v. 138 Sidelines Corp., 208 A.D.2d 795, 796, 618 N.Y.S.2d 59 [1994], lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327 [1995] ).