| Pettit v Green |
| 2013 NY Slip Op 01647 [104 AD3d 1149] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| Mark Pettit, Respondent, v Randy B. Green et al.,Defendents, and Six-S Golf, LLC, et al., Appellants. |
—[*1] Duke, Holzman, Photiadis & Gresens LLP, Buffalo (Elizabeth A. Kraengel ofcounsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Cattaraugus County (Gerald J. Whalen,J.), entered December 22, 2011. The order denied the motion of defendants Six-S Golf,LLC, Six-S Holdings, LLC, Larry Short, doing business as Six-S Golf Course, andWilliam F. Short, doing business as Six-S Golf Course, for summary judgmentdismissing the complaint against them.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the motion is granted, and the complaint against defendants Six-SGolf, LLC, Six-S Holdings, LLC, Larry Short, doing business as Six-S Golf Course, andWilliam F. Short, doing business as Six-S Golf Course, is dismissed.
Memorandum: Plaintiff commenced this negligence action to recover damages forinjuries he sustained while attending a party hosted by defendant Jesse J. Dewey onpremises allegedly owned by Six-S Golf, LLC, Six-S Holdings, LLC, Larry Short, doingbusiness as Six-S Golf Course, and William F. Short, doing business as Six-S GolfCourse (collectively, defendants). It is undisputed that other party guests accostedplaintiff, knocked him to the ground, and beat him. Defendants appeal from an orderdenying their motion for summary judgment dismissing the complaint against them,contending that as a matter of law they owed plaintiff no duty of care. We agree.
In general, "[landowners] are under a common-law duty to 'control the conduct ofthird persons on their premises when they have the opportunity to control such personsand are reasonably aware of the need for such control' " (Furio v Palm BeachClub, 204 AD2d 1053, 1054 [1994], quoting D'Amico v Christie, 71 NY2d76, 85 [1987]; see Dynas v Nagowski, 307 AD2d 144, 146 [2003]). Thus,landowners who are not present when a guest engages in harmful conduct and who haveneither notice of nor control over such conduct are under no duty to protect others fromsuch conduct (see Cavaretta v George, 265 AD2d 801, 802 [1999]), unless thenature of the relationship [*2]between the landownersand the party host is such that the landowners, even if absent, are deemed to share in theduty imposed upon the host (see D'Amico, 71 NY2d at 87-88; Dynas,307 AD2d at 146; see generally Sideman v Guttman, 38 AD2d 420, 429 [1972]).
Here, defendants met their initial burden on the motion for summary judgment byestablishing that they were not present and had neither notice of nor control over theconduct at issue (see Dynas, 307 AD2d at 146). Inasmuch as plaintiff did notestablish any special relationship between defendants and Dewey such that they would becharged with Dewey's legal duty to protect plaintiff from harm, he failed to raise a triableissue of fact sufficient to defeat the motion (see id. at 146-148; Cavanaugh vKnights of Columbus Council 4360, 142 AD2d 202, 204 [1988], lv denied74 NY2d 604 [1989]). Present—Smith, J.P., Peradotto, Lindley, Sconiers andValentino, JJ.