Durante v. Transform SR Brands, LLC

Durante v Transform SR Brands, LLC 2026 NY Slip Op 05935 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Joseph Durante, appellant, v Transform SR Brands, LLC, et al., respondents. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2025-01076, (Index No. 51026/21) Angela G. Iannacci, J.P. Paul Wooten Lourdes M. Ventura Lisa S. Ottley, JJ. Hofmann & Schweitzer, New York, NY (Timothy F. Schweitzer of counsel), for appellant. Sobel Pevzner, LLC, Huntington, NY (Judy R. Meisel of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated November 25, 2024. The order granted the defendants' motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained in December 2018 when he was assaulted outside the defendants' store by unknown assailants. Thereafter, the defendants moved for summary judgment dismissing the complaint. In an order dated November 25, 2024, the Supreme Court granted the defendants' motion. The plaintiff appeals. The elements of negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (see Solomon v City of New York, 66 NY2d 1026, 1027). "Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property" (Kranenberg v TKRS Pub, Inc., 99 AD3d 767, 768; see D'Amico v Christie, 71 NY2d 76, 85). "However, 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" (Kranenberg v TKRS Pub, Inc., 99 AD3d at 768 [internal quotation marks omitted]; see D'Amico v Christie, 71 NY2d at 85). The scope of this duty "is defined by past experience and the likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor" (Maheshwari v City of New York, 2 NY3d 288, 294 [internal quotation marks omitted]) and "is limited to risks of harm that are reasonably foreseeable" (Sanchez v State of New York, 99 NY2d 247, 253). "To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" (Gentile v Town & Vil. of Harrison, N.Y., 137 AD3d 971, 972). "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 AD3d 1190, 1192; see Kranenberg v TKRS Pub, Inc., 99 AD3d at 768). Here, the evidence submitted by the defendants in support of their motion established, prima facie, that the assault was unexpected and unforeseeable based on the surrounding circumstances (see Campolongo v DR & RD, Inc., 241 AD3d 1417, 1419; Velez v Pacific Park 38 Sixth Ave., LLC, 183 AD3d 590, 591; Oblatore v 67 W. Main St., LLC, 169 AD3d 705, 706). In opposition, the plaintiff failed to raise a triable issue of fact. The opinion of the plaintiff's expert was conclusory and speculative and, thus, insufficient to raise a triable issue of fact (see McAllister v City of New York, 159 AD3d 887, 888; Scheir v Lauenborg, 281 AD2d 530, 531). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants' remaining contention need not be reached in light of our determination. IANNACCI, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court