598 N.Y.S.2d 891 | N.Y. App. Div. | 1993
Judgment unanimously affirmed without costs. Memorandum: Plaintiff’s decedent was employed as a security guard for a store located on Bailey Avenue in Buffalo. On October 6, 1987, he accompanied another employee to a nearby branch of defendant Marine Midland Bank (Bank) to make a deposit at the night depository box. During a robbery attempt by an unidentified assailant, plaintiff’s decedent was shot and killed. Plaintiff commenced this action alleging that the Bank was negligent in failing to exercise reasonable care in constructing, designing and maintaining its premises in a reasonably safe manner and in failing to warn of the defective and dangerous conditions at the night depository box.
We disagree with plaintiff that our decision in Dyer (supra) is in conflict with the holding of the Court of Appeals in Nallan v Helmsley-Spear, Inc. (50 NY2d 507, supra). In Nallan, the Court of Appeals held that, even where there is an extensive history of criminal conduct on the premises, the possessor has no duty to take protective measures unless he knows or has reason to know that there is a likelihood of intentionally harmful conduct by third persons that is likely to endanger the safety of the visitor (Nallan v Helmsley-Spear, Inc., supra, at 519, citing Restatement [Second] of Torts § 344, comment f). There, evidence of 107 reported crimes in the previous 21 months, including 10 crimes against the person, established a prima facie case against the building’s owner. Here, plaintiff submitted, albeit in inadmissible form, evidence of two reported crimes prior to the incident in question: a robbery of the night depository box 22 months earlier and a robbery of the Bank about 10 months earlier. Those two incidents do not give rise to a duty on the Bank’s part to anticipate a risk of harm from criminal activity at the night