Opinion
13152/06.
Decided June 30, 2008.
Samuel Racer, Esq. Attorney for Defendant 250 West 57th Street, Suite 919 New York, New York, 10107 Weitz Luxenberg, P.C.
Attorneys for Plaintiffs By: Nicholas Wise 180 Maiden Lane New York, New York, 10038.
The motion by defendant 273 Brighton Beach Ave. Restaurant, Inc., d/b/a National Restaurant (National) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiffs Mikhail Barshay (Barshay) and Nelli Barshay herein is denied.
This personal injury action arises out of an incident which occurred on the evening of December 9, 2005 when Barshay, a patron of defendant, was allegedly assaulted on the steps located immediately outside National, at 273 Brighton Beach Avenue, Brooklyn, by a group of unnamed men. Plaintiffs assert in their complaint that as a result of National's negligence and failure to provide adequate security to its patrons, Barshay sustained a serious injury to his eye when he was allegedly beaten by a group of National patrons.
Barshay was at National on the night of the incident with his brother, Oleg Barshay (Oleg), and a group of approximately 6 other men. In his examination before trial, Barshay notes that an acquaintance, Roma, who was also a chef at National, helped the group to get a table because they did not have a reservation. Barshay testified that he was seated on the second floor, where he observed another party of "Georgian people" who were drunk and fighting. Barshay also testified that the same group of people confronted his brother downstairs while he and his brother were in the hall and "heated words" were exchanged. After this initial alleged confrontation, Barshay went back to the second floor while his brother stayed downstairs. Barshay was not present during any further confrontation between his brother and the group, but he did find the men surrounding his brother approximately 20 minutes later when he went downstairs to look for him. When Barshay walked outside onto the front steps of National, a fight between his brother and the group ensued from which Barshay tried to remove his brother. Barshay testified that immediately before the fight, "[the group members] wanted to get something from [his brother]" and that they were waving their arms at Oleg as he tried to calm them down. Barshay also testified that Roma warned Oleg not to argue with the men because there were a lot of them. Roma also allegedly told Oleg to calm down after the initial heated words were exchanged between Oleg and the group. As Barshay was trying to remove his brother from the fight, Barshay was allegedly hit in the head with a flower pot, and then hit in the eye after he fell to the ground by an unidentified assailant from the group.
In its motion, National contends that Barshay fails to state a cause of action for any negligence on the part of National, and that "although the plaintiff alleges that he sustained serious injuries as a result of an assault, he fails to identify any of the assailants and admits that the alleged assault took place outside the defendant's premises." In support of this assertion, National submits the police report of the subject incident, which indicates that Barshay was "coming out of restaurant/bar" prior to the assault. National also offers Barshay's own testimony that the incident occurred "on the steps" which Barshay admitted is "outside" the restaurant. The police report also indicates that the alleged perpetrator was a white male, approximately 20-25 years old. The perpetrator was never apprehended or identified. In addition, National emphasizes Barshay's testimony that he did not know anyone in the group of men who were involved in the fight. National avers that while Barshay claims that the group of men were restaurant patrons, Barshay's inability to positively identify his attackers makes it unreasonable to assume that National could have anticipated or prevented the attack. National also claims that there is no proof that any of the men in the group were inebriated at the time of the incident. Finally, National argues that the fight was sudden and unexpected and, as a result, was not foreseeable.
In opposition to the motion, plaintiffs argue that National's motion should be denied because National has not tendered sufficient evidence demonstrating its entitlement to summary judgment. Plaintiffs also assert that material issues of fact exist with respect to whether National was negligent and whether the incident was foreseeable, and that such issues should preclude the granting of summary judgment. Plaintiffs refute any claim by National that the incident was sudden and unexpected, but rather argue that the alleged assault was a reasonably anticipated event and that National breached a duty of reasonable care owed to the plaintiff in failing to control its unruly patrons and therefore prevent the assault. Plaintiffs allege that although the fight occurred outside on the steps, the altercation began inside the restaurant, and that at least one restaurant employee, Roma, was "aware of the commencement and escalation of the situation in that he was a witness to same." Plaintiffs also aver that from the "boisterous behavior and inebriated condition" of the group, it was foreseeable that an assault was likely to occur. Noting National's status as a "bar/night club," as indicated in the police report, and the fact that alcohol was dispensed on a regular basis, plaintiffs assert that National should have employed security personnel on the premises to prevent the outbreak of violence. Further, plaintiffs contend that National's reliance on the fact that the assault happened outside the premises is "overstated and of minimal significance," as it is the defendant's actual or apparent control over the premises that determines liability. Plaintiffs also assert that National controlled the area immediately adjacent to the restaurant as an obvious means of ingress and egress to the location. Plaintiffs, therefore, argue that National should have foreseen the possibility of such an assault and taken measures to prevent it. Barshay also contends that he need not identify his assailants, other than to know that they were patrons of National, in order to establish liability. Additionally, plaintiffs allege that National can be charged with actual or constructive knowledge of the general risk to which Barshay was subjected as a patron of its bar/restaurant. Accordingly, plaintiffs argue that a heightened level of security to prevent disorderly conduct was required. The plaintiffs note issues of fact regarding the length and intensity of the altercation and whether the defendant had an opportunity to control the conduct of aggressive patrons. Moreover, in their memoranda of law opposing summary judgment, plaintiffs contend that the incident involving Barshay was "not the first instance of assaultive behavior among National's patrons."
Plaintiffs cite a prior action brought before this court, Danilovich v 273 Brighton Beach Ave. Restaurant, 44862/2002, to establish prior notice of violence among patrons at National. However, court records indicate that said case was settled before trial, without any finding of negligence on the part of National. As that action was not resolved on the merits, it cannot establish a predicate for prior notice in the instant action.
In reply, National reiterates its claim that it was under no duty to take preventative measures because the injuries to Barshay were unforeseeable as said injuries resulted from a sudden assault outside the restaurant by unknown assailants.
Summary judgment is a drastic remedy which should not be granted when there is any significant doubt as to the existence of a triable issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter ( see Zuckerman v City of New York, 49 NY2d 557, 562). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion ( see Goldstein v Monroe County, 77 AD2d 232, 236). In negligence cases, summary judgment is rarely appropriate because even when the facts are conceded there is often a question as to whether the parties acted reasonably under the circumstances ( see Rivers v Atomic Exterminating Corp., 210 AD2d 134; Smith v Key Bank of Western New York, 206 AD2d 848, 849).
Further, to establish a claim of negligence, a plaintiff must demonstrate: (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof ( see Akins v Glens Falls City School Dist., 53 NY2d 325). An owner or occupier of land has a legal duty to exercise reasonable care under the circumstances to maintain his or her premises in a reasonably safe condition ( see Basso v Miller, 40 NY2d 233). That duty includes taking minimal precautions to protect members of the public from reasonably foreseeable criminal acts of third parties ( see Evans v 141 Condominium Corp., 258 AD2d 293), and controlling the conduct of persons on his or her premises when he or she has the opportunity to do so and are reasonably aware of the need for such control ( see Nelson v Neng, 297 AD2d 313; also see Lindskog v Southland Rest., 160 AD2d 842, 843). However, the Court of Appeals has noted that a possessor of land is not an insurer of the visitor's safety, and to establish the existence of a duty on his or her part to take minimal protective measures, it must be shown "that there is a likelihood of conduct on the part of third persons. . .which is likely to endanger the safety of the visitor" ( Nallan v Helmsley-Spear, Inc., 50 NY2d 507). Once a plaintiff establishes that a duty exists, he or she must then demonstrate that the defendant breached that duty by failing to provide minimal precautions against the foreseeable criminal acts of third parties, and that the breach was a proximate cause of his or her injuries ( see Burgos v Aqueduct Realty Corp., 92 NY2d 544). The questions of what safety precautions may reasonably be required is generally a question of fact to be determined by the jury ( see Nallan, 50 NY2d at 520 ).
Construing the facts in the instant case in the light most favorable to the plaintiffs, an issue of fact exists as to whether the incident was foreseeable or unexpected, given Barshay's claim that National knew or should have known that patrons were exchanging heated words and fighting in the restaurant approximately 20 minutes prior to the alleged assault and that an employee was aware of the tension between these patrons ( see Ash v Fern, 295 AD2d 869). While National contends that the physical altercation between Barshay and the other patrons was sudden and unexpected, Barshay stated in his deposition that his brother and the group had a confrontation in the hallway of the restaurant that involved the exchange of heated words, and that when Barshay went to look for his brother some 20 minutes later, he observed that the group of men had surrounded his brother just outside the premises' front door. Moreover, Barshay also alleges that he witnessed his assailants engaged in "fighting" on the second floor of National prior to the instant assault. Other than an apparent warning by Roma, National employees took no further action to control the patrons until a physical altercation erupted on the steps outside the front entrance. Such issues of fact regarding foreseeability, negligence, and breach of duty are most appropriately left to the jury to resolve. Accordingly, the motion by National is denied.
The foregoing constitutes the decision and order of this court.