Schaus v. Marine Midland Bank, N. A. , 649 N.Y.S.2d 752 ( 1996 )

Order unanimously affirmed with costs. Memorandum: Plaintiff’s decedent was fatally shot while making a deposit for his employer at the night depository of defendant’s branch bank. Plaintiff commenced this action seeking damages for defendant’s alleged failure to undertake adequate precautions to protect night depositors from the foreseeable risk of a criminal attack. Supreme Court properly denied defendant’s pre-answer motion to dismiss the complaint for failure to state a cause of action (see, CPLR 3211 [a] [7]).

As the owner of a branch bank with a night depository, defendant " 'had a duty to take reasonable precautions to secure its premises if it knew or had 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 users’ ” of the night depository (Golombek v Marine Midland Bank, 193 AD2d 1113, 1114, quoting Dyer v Norstar Bank, 186 AD2d 1083, lv denied 81 NY2d 703; see also, Cercone v Norstar Bank [appeal No. 1], 199 AD2d 987, lv denied 83 NY2d 756). Whether an attack by third persons is reasonably foreseeable ordinarily is an issue of fact (see generally, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585; Rivera v New York City Tr. Auth., 77 NY2d 322, 329, rearg denied 77 NY2d 990). On a motion to dismiss pursuant to CPLR 3211, the judicial function "is to 'determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318, quoting Leon v Martinez, 84 NY2d 83, 87-88). The complaint alleges that prior criminal activity occurred at defendant’s branch bank and at other banks in the neighborhood and that defendant recognized the danger and need for safety precautions in its own safety manual. Thus, the complaint states a cause of action for negligence. (Appeal from Order of Supreme Court, Erie County, Whelan, J.—Dismiss Complaint.) Present—Denman, P. J., Pine, Wesley, Balio and Davis, JJ.