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

Paul PETRAS, appellant, v. SACI, INC., d/b/a Saci and Ryan, LLC, respondent.

Decided: May 31, 2005

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, WILLIAM F. MASTRO, and ROBERT A. LIFSON, JJ. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot and Marie Ng of counsel), for appellant. Hoffman & Roth, LLP, New York, N.Y. (William S. Matlin of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated May 3, 2004, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for the injuries he sustained when he was assaulted by two unknown assailants at the defendant's nightclub in Manhattan.

 While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforeseen and unexpected assault (see Cutrone v. Monarch Holding Corp., 299 A.D.2d 388, 749 N.Y.S.2d 280;  Scalice v. Kullen, 274 A.D.2d 426, 710 N.Y.S.2d 632).

 Based on the evidence presented, the plaintiff was injured as the result of a sudden and unexpected altercation by unidentified assailants which the defendant could not have reasonably anticipated or prevented.   Therefore, the defendant cannot be held liable for the plaintiff's injuries (see Scalice v. Kullen, supra;  Elba v. Billie's 1890 Saloon, 227 A.D.2d 438, 644 N.Y.S.2d 278).

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