Opinion
2016–08720 Index No. 35366/07
02-06-2019
Manuel OBLATORE, appellant, v. 67 WEST MAIN STREET, LLC, et al., respondents, et al., defendants.
Lieb at Law, P.C., Center Moriches, N.Y. (Andrew M. Lieb and Dennis Valet of counsel), for appellant. Morrison Mahoney LLP, New York, N.Y. (Demi Sophocleous of counsel), for respondents.
Lieb at Law, P.C., Center Moriches, N.Y. (Andrew M. Lieb and Dennis Valet of counsel), for appellant.
Morrison Mahoney LLP, New York, N.Y. (Demi Sophocleous of counsel), for respondents.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the order is affirmed, with costs.
On the early morning hours of August 25, 2007, the plaintiff and his friends allegedly were attacked from behind by a group of individuals in a parking lot located adjacent to an establishment owned and/or operated by the defendants 67 West Main Street, LLC, Havens Brewery, LLC, Brick House Brewery & Restaurant, Brick House Brewing Co., and Havens Brewery, LLC, doing business as Brick House Brewery & Restaurant, also known as Brick House Brewing Co. (hereinafter collectively the defendants). The plaintiff subsequently commenced this action alleging, inter alia, that the defendants were negligent in failing to control the conduct of persons on their property. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiff appeals."Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property" ( Kranenberg v. TKRS Pub, Inc., 99 A.D.3d 767, 768, 952 N.Y.S.2d 215 ; see D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 ; Hegarty v. Tracy, 125 A.D.3d 804, 805, 4 N.Y.S.3d 254 ). "However, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control" ( Kranenberg v. TKRS Pub, Inc., 99 A.D.3d at 768, 952 N.Y.S.2d 215 [internal quotation marks omitted]; see Afanador v. Coney Bath, LLC, 91 A.D.3d 683, 683–684, 936 N.Y.S.2d 312 ; Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192, 885 N.Y.S.2d 724 ). "Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" ( Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d at 1192, 885 N.Y.S.2d 724 ; see Kranenberg v. TKRS Pub, Inc., 99 A.D.3d at 768, 952 N.Y.S.2d 215 ; Afanador v. Coney Bath, LLC, 91 A.D.3d at 683–684, 936 N.Y.S.2d 312 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the attack on the plaintiff was unforeseeable and unexpected (see Hegarty v. Tracy, 125 A.D.3d at 805, 4 N.Y.S.3d 254 ; Kranenberg v. TKRS Pub, Inc., 99 A.D.3d at 768, 952 N.Y.S.2d 215 ; Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d at 1192, 885 N.Y.S.2d 724 ). 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 defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
The plaintiff's remaining contentions are without merit or need not be reached in light of our determination.
RIVERA, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.