Opinion
September 30, 1997
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Denman, P.J., Pine, Balio, Boehm and Fallon, JJ.
Supreme Court properly dismissed the complaint against TeDave Enterprises, Inc., also known as Checker's (defendant). Although a landowner has a duty to control the conduct of persons on his premises when he has the opportunity to control or is reasonably aware of the necessity to control (see, Lindskog v. Southland Rest., 160 A.D.2d 842, 843; Huyler v. Rose, 88 A.D.2d 755, appeal dismissed 57 N.Y.2d 777), "[t]here is no legal duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against" (Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711). The alleged assault against plaintiff was "an unexpected altercation between patrons" (Lindskog v. Southland Rest., supra, at 843) and was "not a situation which could reasonably be expected to be anticipated or prevented" (Silver v. Sheraton-Smithtown Inn, supra, at 712).
Plaintiff's reliance on Cittadino v. DeGironimo ( 198 A.D.2d 801) is misplaced. There, the conduct of the assailant was more pronounced and violent than the brief shouting match described by plaintiff.
The court also properly dismissed the Dram Shop cause of action; defendant met its initial burden and plaintiff failed to come forward with evidence in admissible form to show that the assailant was visibly intoxicated or indeed had been served alcohol at the restaurant ( see, Costa v. 1648 Second Ave. Rest., 221 A.D.2d 299).