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Fai v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 515 (N.Y. App. Div. 1991)

Opinion

April 1, 1991

Appeal from the Supreme Court, Kings County (Greenstein, J.).


Ordered that the order is reversed insofar as appealed from, on the law, and the motion and cross motions for summary judgment dismissing the complaints and all cross claims and counterclaims insofar as asserted against the appellants are granted; and it is further

Ordered that the appellants, appearing separately and filing separate briefs, are awarded one bill of costs.

The infant respondents were present at the "Quartermaster", a T-shirt store with coin-operated video games, when a hired arsonist entered the store and lobbed a firebomb into the rear of the premises. The infant respondents sustained injury from the resulting explosion, and subsequently commenced the instant action against, inter alia, the City of New York, the owner of the subject premises, the proprietor and the manager of the T-shirt store, and the supplier of the video machines. The appellants thereafter moved and cross-moved for summary judgment dismissing the complaints and cross claims insofar as asserted against each appellant. Although the Supreme Court granted the City's motion, it denied the motion and cross motions of the appellants, finding that triable issues of fact on the issue of liability precluded summary judgment. We disagree and reverse.

Contrary to the respondents' contentions, the record fails to establish that the appellants were on notice that criminal acts against the arcade were imminent (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, citing Restatement [Second] of Torts § 344, comment f; see also, Iannelli v. Powers, 114 A.D.2d 157, 163). In this regard, we note that the respondents failed to set forth any evidentiary facts indicating that the appellants knew, or had reason to know from past experience, that there was a likelihood of conduct on the part of third persons which was likely to endanger the safety of visitors (see, Zuckerman v. City of New York, 49 N.Y.2d 557).

Moreover, the respondents additionally failed to demonstrate that they sustained any injury due to negligence on the part of the appellants (see, Sheehan v. City of New York, 40 N.Y.2d 496, 501; see generally, Muniz v. Flohern, Inc., 77 N.Y.2d 869). Since the respondents tendered only conclusory allegations in opposition to the motions for summary judgment, we find that the motions should be granted (see, Zuckerman v. City of New York, supra, at 562).

In light of the above, we find it unnecessary to address the appellants' remaining contentions. Brown, J.P., Sullivan, Eiber and O'Brien, JJ., concur.


Summaries of

Fai v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 515 (N.Y. App. Div. 1991)
Case details for

Fai v. City of New York

Case Details

Full title:TSANG KING FAI, an Infant, by His Father and Natural Guardian, TSANG YING…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1991

Citations

172 A.D.2d 515 (N.Y. App. Div. 1991)