Gray v. Forest City Enterprises, Inc.

Nov 19, 1997
Versions:244 A.D.2d 974
665 N.Y.S.2d 211
1997 N.Y. App. Div. LEXIS 12391

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ motions for summary judgment dismissing the complaint. Plaintiffs allege that defendants, the owner of a shopping mall and the owner of a store in the mall, were negligent in failing to provide adequate lighting and security to protect Karen Gray (plaintiff). An unidentified assailant pulled plaintiff to the ground as she was walking past the store’s loading dock on her way to a vehicle in the mall parking lot. Defendants met their initial burden to establish their defense “ ‘ “sufficiently to warrant the court as a matter of law in directing judgment” in [their] favor’ ” (Zuckerman v City of New York, 49 NY2d 557, 562, quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068, quoting CPLR 3212 [b]), and plaintiffs failed to raise a triable issue of fact.

“[E]ven where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience ‘that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor’ (Restatement, Torts 2d, § 344, comment f)” (Nallan v HelmsleySpear, Inc., 50 NY2d 507, 519). Defendant J.C. Penney Company, Inc., established that it had no notice of a prior criminal history of muggings outside its store. Evidence that the owner of the mall had notice of six prior criminal incidents at the mall, none of which occurred by the loading dock, does not establish that an attack upon plaintiff was reasonably foreseeable (see, Leyva v Riverbay Corp., 206 AD2d 150; Surini v Adamowicz, 200 AD2d 737, lv denied 83 NY2d 755; Golombek v Marine Midland Bank, 193 AD2d 1113). The fact that conduct is conceivable does not render it foreseeable (see, Ascher v Garafolo Elec. Co., 113 AD2d 728, 732, affd 67 NY2d 637; Cercone v Norstar Bank [appeal No. 1], 199 AD2d 987, lv denied 83 NY2d 756; Golombek v Marine Midland Bank, supra). (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Wisner, Balio and Fallon, JJ.