Opinion
May 7, 1999
Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.
Present — Denman, P. J., Green, Pine, Lawton and Hurlbutt, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of E.M.D. Enterprises, Inc., d/b/a The Country Club, and Eugene Dinino (defendants) for summary judgment dismissing the complaint against them. Plaintiff was injured at about 2:00 A.M. when she was slashed by a razor blade during an altercation with defendant Kara Cohen. Plaintiff and Cohen were patrons at The Country Club, a nightclub owned and operated by defendants.
"A tavern owner owes a duty to his patrons to protect them from personal attack when he has reasonable cause to anticipate conduct on the part of third persons which is likely to endanger their safety [citations omitted]. The nature and scope of this duty is derived from the general concept of foreseeability: `[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation'" ( Stevens v. Kirby, 86 A.D.2d 391, 394, quoting Palsgraf v. Long Is. R. R. Co., 248 N.Y. 339, 344, rearg denied 249 N.Y. 511; see also, Cittadino v. DeGironimo, 198 A.D.2d 801; Marianne OO. v. C M Tavern, 180 A.D.2d 998). Defendants had notice of the danger to plaintiff and reasonable cause to anticipate harm to her because plaintiff told defendants' employees that she had been threatened, that she was fearful, and that she thought she would be "jumped" by Cohen and her friends.
Defendants contend that they are entitled to summary judgment because, even if the altercation took place in their parking lot rather than in the public street, they were under no duty to protect plaintiff once she declined their employee's offer to provide an escort to her car. Plaintiff testified, however, that, although she declined the offer of defendants' security officer for an escort to her car, she expressly asked him to watch her as she went to her car. That request, if made, conveyed the continuing concern of plaintiff for her safety. Thus, plaintiff raised questions of fact concerning the nature and extent of defendants' duty to plaintiff and whether the actions of defendants' employees were reasonable ( see, Wilder v. Nickbert Inc., 254 A.D.2d 819; see generally, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, rearg denied 52 N.Y.2d 784; Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 712).