Petras v. Saci, Inc.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated May 3, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for the injuries he sustained when he was assaulted by two unknown assailants at the defendant’s nightclub in Manhattan. While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforseen and unexpected assault (see Cutrone v Monarch Holding Corp., 299 AD2d 388 [2002]; Scalice v Kullen, 274 AD2d 426 [2000]). Based on the evidence presented, the plaintiff was injured as the result of a sudden and unexpected altercation by unidentified assailants which the defendant could not have reasonably anticipated or prevented. Therefore, the defendant cannot be held hable for the plaintiffs injuries (see Scalice v Kullen, supra; Elba v Billie’s 1890 Saloon, 227 AD2d 438 [1996]). Florio, J.P., Adams, Mastro and Lifson, JJ., concur.