Kiely v. Benini

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.
• Citation: Kiely v. Benini, 89 A.D.3d 807, 932 N.Y.S.2d 181, 2011 N.Y. Slip Op. 8126 (N.Y. App. Div. 2011)
• Decision Date: 09 November 2011
• Parties: Gary KIELY, Jr., et al., appellants,v.Bryan BENINI, defendant,Grey Lake, Inc., doing business as Metro 53, respondent.

89 A.D.3d 807

932 N.Y.S.2d 181

2011 N.Y. Slip Op. 08126

Gary KIELY, Jr., et al., appellants,

v.Bryan BENINI, defendant,Grey Lake, Inc., doing business as Metro 53, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2011.

Sacco & Fillas, LLP, Whitestone, N.Y. (Andrew Wiese of counsel), for appellants.White & McSpedon, P.C., New York, N.Y. (Joseph W. Sands of counsel), for respondent.PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), entered June 8, 2010, as granted those branches of the motion of the defendant Grey Lake, Inc., doing business as Metro 53, which were for summary judgment dismissing the causes of action to recover damages for personal injuries premised on common-law negligence insofar as asserted against it and to recover damages for personal injuries to the plaintiff Kristy Kiely premised on a violation of the General Obligations Law § 11–101.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs, brother and sister Gary Kiely, Jr., and Kristy Kiely, commenced this action to recover damages for personal injuries they allegedly sustained during various altercations that took place at the premises owned by the defendant Grey Lake, Inc., doing business as Metro 53 (hereinafter Metro 53). Metro 53 moved for summary judgment dismissing the complaint insofar as asserted against it. In the order appealed from, the Supreme Court, among other things, granted those branches of Metro 53's motion which were for summary judgment dismissing the causes of action to recover damages for personal injuries premised on common-law negligence insofar as asserted against it and to recover damages for personal injuries to Kristy premised on a violation of the General Obligations Law § 11–101. The plaintiffs appeal. We affirm the order insofar as appealed from.

The Supreme Court properly granted that branch of Metro 53's motion which was for summary judgment dismissing the causes of action to recover damages for personal injuries allegedly sustained by both of the plaintiffs premised on common-law negligence insofar as asserted against it. “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” ( Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192, 885 N.Y.S.2d 724 [internal citations omitted]; see D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896; Millan v. AMF Bowling Ctrs., Inc., 38 A.D.3d 860, 861, 833 N.Y.S.2d 173; Petras v. Saci, Inc., 18 A.D.3d 848, 796 N.Y.S.2d 673; Cutrone v. Monarch Holding Corp., 299 A.D.2d 388, 389, 749 N.Y.S.2d 280). Metro 53 made a prima facie showing of its entitlement to judgment as a matter of law as to...