COVELLI v. SILVER FIST LTD

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

Mary C. COVELLI, etc., Appellant, v. SILVER FIST, LTD., et al., Respondents, et al., Defendant.

2016–05848

Decided: December 26, 2018

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ. Asta & Associates, P.C., New York, N.Y. (Michael J. Asta of counsel), for appellant. Kenney Shelton Liptak Nowak LLP, White Plains, N.Y. (Deborah A. Summers of counsel), for respondents.

DECISION & ORDER

In action, inter alia, to recover damages for negligence and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered April 6, 2016.  The order granted the motion of the defendants Silver Fist, Ltd., Silver Fist, Ltd., doing business as Shooters Tiki Bar & Grill, and Shooters Tiki Bar & Grill for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff's decedent died from injuries sustained as a result of an altercation with the defendant Robert Roll. The altercation occurred on the public roadway outside of Shooters Tiki Bar & Grill, where the decedent and Roll had both been patrons.  The plaintiff, as administrator of the decedent's estate, commenced this action against Roll and the defendants Silver Fist, Ltd., Silver Fist, Ltd., doing business as Shooters Tiki Bar & Grill, and Shooters Tiki Bar & Grill (hereinafter collectively the bar defendants), alleging, inter alia, negligence and wrongful death.  The bar defendants moved for summary judgment dismissing the complaint insofar as asserted against them, contending, inter alia, that they owed no duty of care to persons outside their premises and, in any event, that they could not be held liable for the unforeseeable and unexpected assault upon the decedent.  The Supreme Court granted the motion.  The plaintiff appeals.

Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property (see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868).  In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control (see D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896).  Under this rationale, courts have recognized that a landowner may have responsibility for injuries caused by an intoxicated guest (see id. at 85, 524 N.Y.S.2d 1, 518 N.E.2d 896).  However, it is “uniformly acknowledged that liability may be imposed only for injuries that occurred on defendant's property, or in an area under defendant's control, where defendant had the opportunity to supervise the intoxicated guest” (id.;  see Martino v. Stolzman, 18 N.Y.3d 905, 908, 941 N.Y.S.2d 28, 964 N.E.2d 399;  Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 636, 543 N.Y.S.2d 18, 541 N.E.2d 18;  O'Gara v. Alacci, 67 A.D.3d 54, 57, 887 N.Y.S.2d 106;  Reuter v. Flobo Enters., 120 A.D.2d 722, 723, 503 N.Y.S.2d 67).  Moreover, a landowner is not an insurer of a visitor's safety, and has no duty to protect visitors against unforeseeable and unexpected assaults (see Maheshwari v. City of New York, 2 N.Y.3d 288, 294, 778 N.Y.S.2d 442, 810 N.E.2d 894;  Afanador v. Coney Bath, LLC, 91 A.D.3d 683, 683–684, 936 N.Y.S.2d 312;  Sugarman v. Equinox Holding, Inc., 73 A.D.3d 654, 655, 901 N.Y.S.2d 615;  Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192, 885 N.Y.S.2d 724;  Millan v. AMF Bowling Ctrs., Inc., 38 A.D.3d 860, 860–861, 833 N.Y.S.2d 173).

Here, the bar defendants submitted evidence demonstrating that the altercation was a sudden and unforeseeable event, which occurred on a public roadway, outside of their premises and control (see Martino v. Stolzman, 18 N.Y.3d 905, 941 N.Y.S.2d 28, 964 N.E.2d 399;  Candelaria v. Lake & Morningside Props., Inc., 71 A.D.3d 941, 896 N.Y.S.2d 893;  Murphy v. Chaos, 26 A.D.3d 231, 810 N.Y.S.2d 39;  Taft v. Connell, 285 A.D.2d 992, 727 N.Y.S.2d 572;  White v. Celebrity Lounge, 215 A.D.2d 650, 628 N.Y.S.2d 329;  Del Bourgo v. 138 Sidelines Corp., 208 A.D.2d 795, 618 N.Y.S.2d 59;  Shire v. Ferdinando, 161 A.D.2d 573, 555 N.Y.S.2d 151).  In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).  Accordingly, we agree with the Supreme Court's determination granting the bar defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

MASTRO, J.P., COHEN, MALTESE and CHRISTOPHER, JJ., concur.