TAYLOR v. BEDFORD CHECK CASHING CORP

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

Janet TAYLOR, respondent, v. BEDFORD CHECK CASHING CORP., appellant.

Decided: June 28, 2004

ANITA R. FLORIO, J.P., DANIEL F. LUCIANO, SANDRA L. TOWNES, and STEVEN W. FISHER, JJ. Fiedelman & McGaw, Jericho, N.Y. (Andrew Zajac and Ross Masler of counsel), for appellant. David M. Goldberg, Amenia, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated November 5, 2003, which denied its motion for summary judgment dismissing the complaint, with leave to renew.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

As alleged in her bill of particulars, the plaintiff was standing in line in the defendant's check-cashing establishment when two men, who were engaged in a physical altercation outside the premises, entered the establishment.   One of the men produced a gun and fired three shots at the other.   In the ensuing crowd confusion, the plaintiff was knocked to the floor by other patrons, sustaining injuries.   Thereafter, she commenced this action against the defendant, and the defendant moved for summary judgment dismissing the complaint.   The Supreme Court denied the motion, with leave to renew.

Under the unusual circumstances presented here, the Supreme Court erred in denying the defendant's motion.   The intervening, intentional, and criminal act of the third-party gunman in this case, and the ensuing crowd confusion, were not normal or foreseeable consequences of any situation created by the defendant (see Libby v. Waldbaum's, Inc., 240 A.D.2d 547, 547-548, 658 N.Y.S.2d 454;  Burgess v. City of New York, 205 A.D.2d 656, 613 N.Y.S.2d 657;  O'Britis v. Peninsula Golf Course, 143 A.D.2d 123, 125, 531 N.Y.S.2d 364).   Rather, the sequence of events leading to the plaintiff's injuries was so extraordinary and far removed from any alleged breach of the defendant's duty of care as to be unforeseeable as a matter of law (see Buckeridge v. Broadie, 5 A.D.3d 298, 774 N.Y.S.2d 132;  see also Santiago v. New York City Hous. Auth., 63 N.Y.2d 761, 480 N.Y.S.2d 321, 469 N.E.2d 839).

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