FERNANDEZ v. STAPLES INC

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

Menoscar FERNANDEZ, et al., respondents, v. STAPLES, INC., appellant.

Decided: May 24, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ. Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for appellant. Morton Povman, P.C., Forest Hills, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Milano, J.), dated June 12, 1998, which denied its motion for summary judgment dismissing the complaint.

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

The plaintiff Menoscar Fernandez (hereinafter Fernandez) was assaulted in a parking lot outside the defendant's store after purchasing merchandise in the store.   The record indicates that the defendant did not own or control the parking lot in question, but that it was owned and controlled by the defendant's landlord.   In any event, the record contains no evidence of criminal activity prior to the alleged assault from which the defendant could have reasonably foreseen the likelihood of criminal conduct in the parking lot.   Furthermore, the plaintiffs failed to demonstrate that any alleged negligence on the part of the defendant was a substantial cause of the events which produced Fernandez's injuries.   Under these circumstances, the defendant was entitled to summary judgment (see, Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451;  Hashem v. Manemah Food Corp., 232 A.D.2d 153, 647 N.Y.S.2d 511;  Ospina v. City of New York, 214 A.D.2d 551, 625 N.Y.S.2d 76;  Selektor v. Smiles Parking Co., 210 A.D.2d 18, 618 N.Y.S.2d 813;  Surini v. Adamowicz, 200 A.D.2d 737, 607 N.Y.S.2d 113;  Allen v. New York City Hous. Auth., 203 A.D.2d 313, 609 N.Y.S.2d 678).

MEMORANDUM BY THE COURT.

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