Horst v. 725 Food Corp.

—Judgment, Supreme Court, New York County (Edward Lehner, J.), entered on or about June 27, 1997, dismissing the complaint, and bringing up for review a prior order, which, in an action by plaintiff store patron against defendant supermarket for failure to provide security, granted defendant’s motion for summary judgment, unanimously affirmed, without costs. The tossing of a potato, which struck plaintiff in the face, by an unidentified patron of defendant was an unexpected and unforeseeable occurrence that defendant had no opportunity to control, and for which it therefore cannot be held liable. There is no evidence that the patron had ever exhibited dangerous or violent behavior before the incident, and immediately after she did, by hitting the manager with a sack of potatoes, the manager went to call the police, and it was while he was on his way to the telephone that the patron threw a potato at plaintiff (cf., Rivera v 21st Century Rest., 199 AD2d 14). Concur — Sullivan, J. P., Milonas, Rubin and Tom, JJ.