| Donnelly v Elling |
| 2011 NY Slip Op 05222 [85 AD3d 847] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Jaclyn Donnelly, Appellant, v Kara Elling et al.,Defendants, and Thomas J. Whelan, Respondent. |
—[*1] Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John J. Nicolini of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), dated April20, 2010, as granted that branch of the motion of the defendant Thomas J. Whelan which was forsummary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff dated the defendant Thomas J. Whelan for over one year. Shortly after theybroke up, Whelan began to date the defendant Sheridan J. Coulter. The plaintiff allegedlyreceived harassing e-mails and telephone calls from Coulter and her friend, the defendant JillianPavone. Coulter and Pavone alleged that the plaintiff harassed them also. On June 2, 2006, theplaintiff, Whelan, and Coulter agreed to meet after midnight at a train station to discuss thesituation. Whelan and Coulter picked up Pavone and Pavone's friend, the defendant Kara Elling,and Whelan drove them to meet the plaintiff at the station. At the station, the plaintiff wasassaulted by Coulter, Pavone, and Elling.
Thereafter, the plaintiff commenced this action to recover damages for personal injuries.Whelan moved, inter alia, for summary judgment dismissing the complaint insofar as assertedagainst him, contending that he did not owe a duty to the plaintiff.
Whelan established his entitlement to judgment as a matter of law by demonstrating that hehad no duty to protect the plaintiff from the criminal acts of Coulter, Pavone, and Elling (seePurdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8-9 [1988]; D'Amico vChristie, 71 NY2d 76, 88-89 [1987]; Gaige v Kepler, 303 AD2d 626, 627 [2003]; see also Troiano v DeMarco, 50 AD3d1020, 1021 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact as towhether Whelan assumed a duty of care or created the situation which led to the assault (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the SupremeCourt properly granted that branch of Whelan's motion which was for summary judgmentdismissing the complaint insofar as asserted against him. Rivera, J.P., Florio, Dickerson and Eng,JJ., concur.