Summary
In Djurkovic v Three Goodfellows, 1 AD3d 210 (1st Dept 2003), the First Department likewise dismissed plaintiff's personal injury claims against a nightclub owner in the absence of evidence of "any prior criminal activity at its club" (id.).
Summary of this case from Rowe v. AEG Live, LLCOpinion
2221
November 18, 2003.
Judgment, Supreme Court, New York County (Edward Lehner, J.), entered May 20, 2003, dismissing the complaint as against defendant-respondent club owner (defendant) pursuant to an order which, in an action by plaintiff patron against defendant for personal injuries sustained when plaintiff was assaulted on defendant's premises by another patron wielding a box cutter, granted defendant's motion to set aside the verdict in plaintiff's favor and directed judgment in favor of defendant as a matter of law, unanimously affirmed, without costs.
Albert A. Gaudelli, for plaintiff-appellant.
Dawn C. DeSimone, for defendant-respondent.
Before: Saxe, J.P., Saxe, Rosenberger, Friedman, Gonzalez, JJ.
Plaintiff testified that the attack occurred immediately after he refused the assailant's demand to hand over the gold chain he was wearing. Judgment notwithstanding the verdict was properly awarded defendant in the absence of any evidence of any prior criminal activity at its club (see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294-295; Florman v. City of New York, 293 A.D.2d 120, 125-126). In any event, even if the anticipated presence of large crowds of young people consuming alcohol at a "hip-hop" club in the early morning hours made this type of targeted criminal attack foreseeable (but see Florman, 293 A.D.2d at 125, distinguishing Rotz v. City of New York, 143 A.D.2d 301;Maheshwari v. City of New York, 307 A.D.2d 797, 798-799, 763 N.Y.S.2d 287, 288, following Florman and also distinguishing Rotz; Lewis v. Jemanda N.Y. Corp., 277 A.D.2d 134), thus imposing a duty on defendant to take reasonable security measures to minimize the danger (see Jacqueline S., 81 N.Y.2d at 294), there is no evidence from which the jury could have inferred that defendant breached that duty. Defendant, in fact, took security measures against criminal attacks involving weapons, including the hiring of State-licensed security guards who were present throughout the club in significant numbers, and who conducted patdowns and operated metal detectors at the entrance. Admittedly, the detectors were not set to a level sensitive enough to detect small metal objects, such as keys and, so it would appear, box cutters. But because plaintiff offered no expert testimony in the field of security, the jury could only speculate as to any deficiencies in the security provided by defendant, and what additional safety measures, if any, could reasonably have been taken to prevent this type of crime (see Ricard v. Roseland Amusement Dev. Corp., 215 A.D.2d 240, lv denied 87 N.Y.2d 805; Florman, 293 A.D.2d at 127). Based on this record, there is no valid line of reasoning by which the jury could have concluded that defendant failed to provide reasonable security against the type of crime that resulted in plaintiff's injuries.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.