Randolph v. Rite Aid of N.Y., Inc. , 994 N.Y.S.2d 345 ( 2014 )

Randolph v Rite Aid of N.Y., Inc. (2014 NY Slip Op 07307)

Randolph v Rite Aid of N.Y., Inc.

2014 NY Slip Op 07307

Decided on October 28, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 28, 2014
Renwick, J.P., Manzanet-Daniels, Feinman, Kapnick, JJ.

13334 17379/07

[*1] Reginald Randolph, Plaintiff-Appellant,

v

Rite Aid of New York, Inc., Defendant-Respondent, Luis Zuniga, Defendant.

Ofodile & Associates, P.C., Brooklyn (Anthony C. Ofodile of counsel), for appellant.

Raven & Kolbe, LLP, New York (Ryan E. Dempsey of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about January 8, 2013, which granted defendant Rite Aid of New York, Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action seeking recovery for personal injuries, plaintiff alleges that on October 13, 2004, after being caught shoplifting at one of defendant's stores in Manhattan, he was assaulted by a security guard. Plaintiff's first cause of action, the only one at issue on appeal, asserts that defendant's employees were directly negligent in failing to protect him from the security guard, who was armed with a baseball bat, and that defendant is vicariously liable for its employees' negligence. There is no indication that the alleged assault by the security guard, who had no history of violence, was foreseeable (N.X. v Cabrini Med. Ctr. , 97 NY2d 247, 252 [2002]). Accordingly, the duty to protect was not triggered. Absent an opportunity and

duty to protect, there can be no liability for negligence (id. at 253-255).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 28, 2014

CLERK