By notice of motion filed on October 4, 2006, under motion sequence number 2, defendants M & S Deli Grocery and Mun T. Oh jointly move for an order restoring the underlying action to active status and dismissing the complaint pursuant to CPLR §3212.

By notice of cross-motion filed on October 24, 2006, under motion sequence number 3, plaintiff Bonnie Sorscher seeks an accelerated judgment finding defendants liable pursuant to CPLR §3212. Plaintiff does not oppose defendants' request to restore the complaint to active status. Review of the Kings County Clerk file reveals that on February 10, 2006, the complaint was dismissed due to the failure to file a note of issue. The court, by this order, restores the action to active status with the consent of the parties.

The parties appeared in Part 52 of this court for oral argument on motion sequence number 2, on October 18 and for both sequence 2 and 3 on December 1, 2006 and January 5, 2007. On January 5, 2007, the parties completed oral argument and the court reserved decision.

On December 19, 2003, plaintiff commenced this action for personal injuries by filing a summons and verified complaint. The complaint and bill of particulars allege that on October 7, 2002, at around 1:45 pm, while inside the premises of M & S Deli Grocery, located at 2013 Avenue U, Brooklyn, New York, defendants negligently initiated a violent confrontation using physical force against several persons which caused plaintiff to be pushed up against a freezer and sustain injuries. There is no dispute that Mun T. Oh is the sole owner of M &S Deli Grocery and that he, his wife and the plaintiff were present during a violent incident at the store in the early afternoon of October 7, 2002. Issue was joined by defendant's verified answer dated January 30, 2004. The parties have not yet filed a note of issue.

Defendants' motion papers consist of two memoranda of law, an affirmation of their counsel and thirteen exhibits. The first exhibit is an affidavit of Mun T. Oh. The second, marked exhibit one, is a photograph of defendants' grocery store. The third, marked exhibit two is a New York City Police Department aided report. The fourth, marked exhibit A is the summons and verified complaint. Exhibit B is defendants' verified answer. Exhibit C is a court order dated October 4, 2005 pertaining to discovery. Exhibit D is plaintiff's bill of particulars. [*2]Exhibit E is an exact copy of the aided report annexed as exhibit two. Exhibit F is a New York City Police Department report of an incident of criminal mischief and property damage reported on October 7, 2002 at defendants grocery store. Exhibit G is the certified transcripts of plaintiff's deposition taken on April 12, 2005. Exhibit I is two color photographs, one of the exterior, and the other of the interior of defendants grocery store. Exhibit J is the certified transcripts of defendant Oh's deposition taken on April 12, 2005.

Plaintiff's cross-motion papers consists of an affirmation of her counsel and a memorandum of law. The cross-motion references and relies upon the exhibits attached to defendants' motion. Plaintiff also submitted an affirmation of counsel in reply to defendants' motion and in further support of the cross-motion.

The plaintiff and Mr. Oh, through their respective depositions, described the events leading up to plaintiff's injury. Mr. Oh testified that about five youths between the ages of 13 and 15 years old came into his store together. He recognized the youngsters as individuals who had been to his store on at least two prior occasions attempting to shoplift. He did not physically confront or orally argue with the youths in those prior incidents. On the date in question, Mr. Oh observed one of the youths near the cash register counter attempting to steal a carton of cigarettes. Mr. Oh grabbed and restrained the youth. The youth resisted and struck Mr. Oh causing his face to bleed. Mr. Oh got his temporary worker to restrain the youth while he chased the other youths out of the store. Mr. Oh, with the plaintiff's help, locked the other youths out of the store. Some of the youths tried to reenter. The youth involved in the altercation had never acted in a physically violent manner before the incident in question.

Plaintiff testified that she frequently shopped at defendants' grocery store and arrived there at around 1:30 on October 7, 2002. She observed Mr. Oh and his wife behind the counter and four or five teenagers and a five year old boy walking around inside. She saw the five year old boy walk out with a bag of potato chips without paying for it. She heard Mr and Mrs. Oh tell one of the teenagers to give back what he was trying to steal. She then saw Mr. Oh orally argue with one of the youths and then come around from behind the counter to confront the youth. Mr. Oh started to shove the youths out the door. Some of the youths resisted Mr. Oh's attempt to force them out of the store. One of them shoved the plaintiff and returned to fight Mr. Oh. At the time the plaintiff was shoved, Mr. Oh was being pummeled by the youths. Plaintiff dialed 911 and locked the door of the store leaving some of the youths outside. Some of those youths tried to reenter and one of them threw a glass bottle at the store breaking the glass on the entrance door. The youths were yelling that they were going to come in and cut people. The police arrived promptly and led two of the youths away in handcuffs.

After the melee, plaintiff noticed that the store displays and products were knocked over leaving a mess. She also saw that Mr. Oh was bleeding over his eye and his temporary worker was also bleeding. The entire incident from the time plaintiff entered the store until the time she was pushed into the freezer took between three and four minutes.

Concerned about the extent of Mr. Oh's injuries, the plaintiff returned to the deli to see how Mr Oh and Mrs. Oh were doing. She spoke with them, asked them how they were doing, hugged them both and left. [*3]

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]).

In order for the defendants to prevail on their motion to dismiss the complaint they must establish prima facie entitlement to judgment that they were not negligent as a matter of law. Furthermore, the allegation contained within plaintiff's complaint must be deemed true and must receive every favorable inference that can be reasonably drawn therefrom (Leon v. Martinez, 84 NY2d 83, 87 [1994]). Similarly, in order for the plaintiff to prevail on the cross-motion for summary judgment, she must establish a prima facie showing that the defendants were negligent as a matter of law. Defendants contend that they are not negligent as a matter of law because any injury the plaintiff sustained was caused by the sudden and unexpected act of violence of a third party.

While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control (Scalise v. Kullen, 274 AD2d 426 [2nd Dept 2000] citing D'Amico v Christie, 71 NY2d 76 [1987], it has no duty to protect customers against an unforeseen and unexpected assault (Scalise, supra citing Scotti v. W.M.Amusements, 226AD2d 522 [2nd Dept 1996]).

For purposes of deciding defendants' motion the court fully credits plaintiff's description of the events leading up to her injury. Plaintiff described a sudden and unexpected attack by the youths participating in an attempted petty theft. There is no dispute that the youths involved had never behaved in a physically violent manner in defendants' establishment before the date in question. There is also no dispute that the entire incident from the time plaintiff entered defendants' store to the time that she was injured took no more than five minutes.

Although defendants had a duty to exercise reasonable care to protect its customers, the sudden and unexpected physical attack upon plaintiff is not a situation that the defendants could reasonably have been expected to have anticipated or prevented (Davis v. City of New York, 183 AD2d 683 [1st Dept. 1992]). The court finds that Mr. Oh's conduct in attempting to restrain a youth who was attempting to steal from him was lawful and reasonable as a matter of law.

Plaintiff's opposition papers failed to establish the occurrence of a prior similar incident at that store or to raise an issue of fact regarding the forseeability of the incident in question. Thus, viewing the proof in the light most favorable to plaintiff, the court, nevertheless, concludes that defendants made a prima facie showing that they breached no duty to the plaintiff. Viewing the same proof in the light most favorable to the defendant, the court finds that the plaintiff failed to establish a prima facie case for the imposition of liability upon the defendants ( Jones v. Great American Grocery Store, 234 AD2d 940 [4th Dept. 1996] citing Lacy v. Guthrie Clinic, 184 AD2d 1057-1058 [4th Dept 1992]).

Defendants motion for summary judgment dismissing the complaint is granted. Plaintiff's [*4]motion for summary judgment imposing liability on the defendants based on their negligence is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.

Enter forthwith

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J.S.C.