Opinion
May 7, 1992
Appeal from the Supreme Court, Bronx County (Herbert Shapiro, J.).
Plaintiff pleads causes of action based on the fatal shooting of her decedent on the sidewalk outside a branch of defendant bank, but admits that her pleading does not allege facts sufficient to show the elements of special relationship between the decedent and defendant City (see, Kircher v. City of Jamestown, 74 N.Y.2d 251, 264). Plaintiff's failure to offer any evidence or even any allegation of these elements is fatal to the complaint (see, Pollock v. City of New York, 145 A.D.2d 550, 552, lv denied 74 N.Y.2d 601).
Opposition to defendant bank's motion for summary judgment was improperly made solely on an affirmation of counsel (see, Hauff v. CLXXXII Via Magna Corp., 118 A.D.2d 485), and nothing in the record suggests even a possible question of fact on such issues as whether there had been a similar incident in front of the bank on prior occasions, whether the incident took place at a particularly vulnerable location, and whether the bank had any reason to know that there was an unusual likelihood of the crime occurring when it did (see, Urgo v. Jamaica Sav. Bank, 145 Misc.2d 263, 266, affd 150 Misc.2d 983). In any event, it is not pleaded that the crime took place "within the bank" (Clarke v J.R.D. Mgt. Corp., 118 Misc.2d 547, 548).
Finally, plaintiff's candid admission that she lacks the facts even to draft adequate pleadings makes clear that her request for discovery is nothing more than a proposal for a "fishing expedition" (see, Oates v. Marino, 106 A.D.2d 289, 291-292).
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Kassal, JJ.