Opinion
July 12, 1991
Appeal from the Supreme Court, Monroe County, Patlow, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lowery, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant Henrietta Italia's (Coco's) motion for summary judgment dismissing plaintiff's cause of action for negligence. Although Coco's was required to exercise reasonable care for the protection of its patrons, an unexpected altercation between patrons, such as that between plaintiff and defendant Schneider, is not a situation that Coco's could reasonably be expected to have anticipated or prevented (see, Lindskog v Southland Rest., 160 A.D.2d 842; Campbell v Step/Lind Rest. Corp., 143 A.D.2d 111; Silver v Sheraton-Smithtown Inn, 121 A.D.2d 711). Plaintiff submitted no evidence rebutting Coco's showing that, prior to the altercation with plaintiff, Schneider gave no indication that he posed a threat to any of its patrons. Moreover, Coco's was entitled to summary judgment on plaintiff's Dram Shop Act cause of action because plaintiff failed to demonstrate the existence of any triable issue of fact whether Schneider had been actually or apparently intoxicated when served by Coco's (see, Terbush v Buchman, 147 A.D.2d 826; Gonyea v Folger, 133 A.D.2d 964; see also, General Obligations Law § 11-101; Lippman v Hines, 138 A.D.2d 845).