| Lebron v Loco Noche, LLC |
| 2011 NY Slip Op 02534 [82 AD3d 669] |
| March 31, 2011 |
| Appellate Division, First Department |
| Juan Lebron, Appellant, v Loco Noche, LLC, et al.,Respondents, et al., Defendants. (And a Third-Party Action.) |
—[*1] Billig Law, P.C., New York (Darin Billig of counsel), for Loco Noche, respondent. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Lesley C. Siskind ofcounsel), for Mike Zimet Enterprises, Inc., respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered February 2, 2010, whichgranted the motions of defendant/third-party plaintiff Loco Noche, LLC doing business as Noche(Noche) and defendant/third-party defendant Mike Zimet Enterprises, Inc. (MZE) for summaryjudgment dismissing the complaint as against them, unanimously affirmed, without costs.
In this personal injury action, plaintiff alleges that, while he was observing a fight atpremises operated by Noche, an unknown assailant unexpectedly struck him with a bottle.Pursuant to a contract with Noche, MZE provided security services at the premises. The courtproperly determined that the complaint against Noche should be dismissed because plaintifffailed to raise a triable issue of fact as to whether the assault was foreseeable (see Zamore v Bar None Holding Co.,LLC, 73 AD3d 601, 601 [2010]).
The court also properly determined that plaintiff failed to raise a triable issue of fact as towhether MZE owed him a duty of care. The record does not provide any basis for finding thatplaintiff detrimentally relied on MZE's continued performance of its duties under its contractwith Noche. Indeed, plaintiff testified that he remained near the altercation because he did notwant to lose sight of those with whom he had arrived. Accordingly, as a matter of law, plaintiffwill not be able to show that, as a result of MZE's prior provision of security services, "he waslulled into a false sense of security that led him to fail to take steps himself to ensure that" he wasnot assaulted (Rahim v Sottile Sec.Co., 32 AD3d 77, 81 [2006] [internal quotes and citation omitted]).
The record also fails to provide any basis for finding that MZE entirely displaced Noche'sduty to maintain the premises safely. Indeed, although the contract does not describe MZE's[*2]duties in detail, it specifically provides that MZE should"immediately" notify Noche of any incidents, and that "a mutual decision will be reached as toany possible action" (see Rahim, 32 AD3d at 82). Concur—Gonzalez, P.J.,Friedman, Moskowitz, Freedman and RomÁn, JJ.