Opinion
(933) CA 01-00088
July 3, 2001.
Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed.
Before: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER AND BURNS, JJ.
Memorandum:
Plaintiff commenced this action to recover damages for injuries she sustained when she was assaulted in a parking lot owned by the City of Jamestown and located adjacent to defendant's bar. The assault occurred several hours after plaintiff's assailant was ejected from defendant's bar as the result of an altercation involving plaintiff and her companion. Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. The duty of defendant to protect plaintiff from foreseeable harm caused by third persons "was limited to conduct on [her] premises, which [she] had the opportunity to control, and of which [she] was reasonably aware" ( Del Bourgo v. 138 Sidelines Corp., 208 A.D.2d 795, 796, lv dismissed 85 N.Y.2d 924; see, Furio v. Palm Beach Club, 204 A.D.2d 1053, 1054). The proof establishes that defendant neither owned nor assumed sufficient control over the parking lot to have assumed a duty to protect plaintiff from the assault that occurred there ( see, Castracane v. Knights of Columbus, 190 A.D.2d 707, 708, lv denied 82 N.Y.2d 651; Shire v. Ferdinando, 161 A.D.2d 573, 574, lv denied 76 N.Y.2d 713; cf., Robinson v. June, 167 Misc.2d 483, 487).