Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant Astoria Caterers Inc. for an order, pursuant to CPLR 3212, dismissing the Verified Complaint as against it:

-Notice of Motion

Affirmation in Support

Exhibits A-J

-Affirmation in Opposition [*2]

Exhibit A

-Memorandum of Law in Opposition to Defendant's Summary Judgment Motion

-Reply Affirmation in Further Support

The Verified Complaint of plaintiff Anatoly Vekhter alleges that, on April 23, 2010, while at a restaurant on premises owned by defendant Astoria Caterers, Inc., he was "caused to be

negligently, intentionally, wrongfully, willfully, maliciously and with gross negligence, physically detained, assaulted, beaten, battered and falsely arrested" by defendant Viktor Vishnyakov (Verified Complaint ¶ 8.) Plaintiff purports to allege eight causes of action, which appear to be for negligence and battery (First Cause of Action), intentional infliction of emotional distress (Second and Fourth Causes of Action), assault (Third Cause of Action), negligent infliction of emotional distress (Fifth Cause of Action), premises liability and negligent hiring, supervision, and retention (Sixth Cause of Action), failure to provide security as required by New York City Administrative Code §20-359 (Seventh Cause of Action), and punitive damages (Eighth Cause of Action).

With this motion, defendant Astoria Caterers seeks an order, pursuant to CPLR 3212, dismissing the Verified Complaint as against it on the following specified grounds:

"(a)there is no evidence that Astoria Caterers defendant security arrangements were inadequate or negligently arranged;

(b)assuming arguendo that Astoria Caterers defendant did negligently hire or supervise their employees or that their security arrangements were inadequate, Astoria Caterers defendant had no actual or constructive notice of same;

(c)assuming arguendo that Astoria Caterers defendant did negligently hire or supervise their employees, that their security arrangements were inadequate; no such negligence or violations proximately caused plaintiff's injuries, which were solely caused by an unforeseeable and spontaneous assault by co-defendant VIKTOR VISHNYAKOV." (Notice of Motion dated December 16, 2013.)

In support of its motion, Astoria Caterers submits transcripts of the examinations before trial of Plaintiff and of Yefim Kerzhner, Astoria's president; copies of exhibits marked at Plaintiff's examination before trial; and a copy of an NYPD Complaint Report.

The Court notes in the first instance that Astoria Caterers reduces the allegations of Plaintiff's Verified Complaint as against it to "theories of: (I) negligent security; (ii) negligent hiring and supervision of employees; and (iii) violation of New York Administrative Code Section 20-359" (see Affirmation in Support ¶ 5.) Plaintiff does not challenge Astoria's characterization of his claims, and he treats his claims as essentially alleging premises liability/negligent security (see Memorandum [*3]of Law in Opposition to Defendant's Summary Judgment Motion at 8-14.) The Court will follow the parties' lead.

"A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact." (Guiffrida v Citibank Corp., 100 NY2d 72, 81 [2003.]) "Once this showing is made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form to establish the existence of material issues of fact that require a trial for resolution." (Id.)

"A party does not carry its burden in moving for summary judgment by pointing to gaps in its opponents proof, but must affirmatively demonstrate the merit of its claim or defense." (Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909,911 [2d Dept 2013] [internal quotation marks, brackets, and citations omitted].) To the extent, therefore, Astoria Caterers seeks summary judgment here on the ground that "there is no evidence that Astoria['s] . . . security arrangements were inadequate or negligently arranged" (see Notice of Motion dated December 16, 2013), its motion must be denied.

At the time Plaintiff was allegedly attacked by defendant Vishnyakov (who has not appeared in this action), they were attending an event hosted by an "international dating club," as self-characterized, called "Only You." During the three years prior to the April 23, 2010 incident that is the basis for this action, Plaintiff had attended seven or eight events hosted by "Only You" at Astoria Caterers.

Plaintiff and defendant Vishnyakov were not strangers to each other on April 23, 2010. Their animosity was revealed by incidents at three prior events hosted by "Only You"; two were held at venues other than Astoria Caterers in December 2008 and December 2009; the third incident occurred at Astoria on March 5, 2010, and ended with a woman from the restaurant's office asking Plaintiff, Mr. Vishnyakov and their friends to leave.

Plaintiff complained about defendant Vishnyakov to one of the principals of "Only You." Astoria asserts that "Plaintiff never made any complaints to anyone at Astoria Caterers" (Affirmation in Support ¶ 28), but cites no deposition testimony of Plaintiff or Mr. Kerzhner, its president, to support the assertion.

Mr. Kerzhner's deposition testimony describes a limited relationship between Astoria Caterers and the principals of "Only You." Astoria provided the space and a buffet for a fixed amount per person; and an Astoria employee set up before, and cleaned up after, the event. "Only You" controlled everything else. Mr. Kerzhner also testified that there was no history of altercations at Astoria Caterers, and that he did not know defendant Vishnyakov.

Putting aside for the moment Administrative Code §20-359, Astoria's sole remaining contention is that "Plaintiff's injuries were caused solely by an unforeseeable, spontaneous assault; and not by lack of security procedure or personnel" (see Affirmation in Support ¶¶ 49-59.) [*4]

"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, it has no duty to protect customers against an unforseen and unexpected assault." (Petras v Saci, Inc., 18 AD3d 848, 848 [2d Dept 2005].) "There is no legal duty . . . to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against'." (Lindskog v Southland

Restaurant, Inc., 160 AD2d 842, 843 [2d Dept 1990] see also Kranenberg v TKRS Pub, Inc., 99 AD3d 767, 768 [2d Dept 2012] Afanador v Coney Bath, LLC, 91 AD3d 683, 683 [2d Dept 2012].) "[T]he owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults." (Kranenberg v TKRS Pub, Inc., 99 AD3d at 768 [internal quotation marks and citations omitted].)

Particularly in light of Astoria Caterers's limited role and participation in the "Only You" event (see McGlynn v St. Andrew the Apostle Church, 304 AD2d 372, 372 [1st Dept 2003] Cavanaugh v Knights of Columbus Council 4360, 142 AD2d 202, 205 [3d Dept 1988]), Astoria has carried its burden in demonstrating prima facie that it is entitled to judgment as a matter of law on Plaintiff's common-law negligence claims, whether characterized as "negligent security" or "negligent hiring and supervision of employees."

As to New York City Administrative Code §20-359, Plaintiff alleges that Astoria Caterers is a "public dance hall" and "cabaret" as defined in that provision, and that "as a public dance hall and cabaret, . . . Astoria had a duty to provide security for its premises by employing security guards." (Verified Complaint ¶¶ 42, 43.) But, §20-359 is nothing more than a definitional provision, and imposes no requirement on the places that might fall within the defined terms. Neither in his Verified Complaint nor his Verified Bill of Particulars (see ¶¶ 21, 22) does Plaintiff cite to any statutory or regulatory provision that imposes a requirement, such as the presence of security guards. As Astoria contends, therefore, "plaintiff's reliance on Administrative Code Section 20-359 is misplaced" (see Affirmation in Support ¶ 60.)

In opposition, Plaintiff submits his own Affidavit of Merit, and documents concerning the arrest of defendant Vishnyakov as a result of the April 23, 2010 incident. Given the grounds upon which Astoria Caterers moves, the arrest documentation is immaterial. In his Affidavit, Plaintiff describes the altercation with Mr. Vishnyakov the month before that led an employee from the restaurant's office "to break it up," adding that "[a]fter the altercation, [he] complained to everyone and anyone who would listen to [him] about the lack of security at Defendant Astoria Caterers." (Affidavit of Merit ¶¶ 17, 18.) Plaintiff also describes an incident in September 2009, also described at his deposition, when defendant Vishnyakov "got into a fight with a guest of a wedding held at the same time as the party all were attending at . . . Astoria Caterers," adding that "[e]ven back then, [he] complained to management about the lack of security by both . . . Astoria Caterers and the people running the party." (Id. ¶ 19.)

Astoria Caterers's contention in effect that Plaintiff's affidavit is "an attempt to avoid the consequences of [his] earlier deposition testimony by raising feigned issues of fact" (see Rodriguez [*5]v Trakansook, 67 AD3d 768, 769 [2d Dept 2009]), is specious. As noted above, Astoria cites to no deposition testimony that Plaintiff did not complain to it about a lack of security generally or defendant Vishnyakov in particular. Indeed, Astoria does not show that Plaintiff was even asked either question.

Nonetheless, Plaintiff's vague and conclusory assertion that "fights like [his] regularly happened" (see Affidavit of Merit ¶ 20) is insufficient to support a duty on Astoria Caterers's part to provide security either generally or for "Only You" events. Plaintiff provides no evidence of a history of assaults or altercations either at Astoria Caterers or "Only You" events held elsewhere. (See Bryan v Crobar, 65 AD3d 997, 999 [2d Dept 2009] [eight violent crimes of assault at nightclub during prior six months].) Indeed, Plaintiff testified that he had attended seven or eight "Only You" events at Astoria Caterers before April 23, 2010, and reports no prior incident other than his run-in with defendant Vishnyakov the prior month. Plaintiff provides no evidence that Astoria knew, or should or could have known, of the December 2008 or December 2009 incidents at "Only You" events at other venues.

Nor does Plaintiff provide any evidence that events of the type sponsored by "Only You" present a particularized risk of violence. To the extent that Plaintiff now argues that Astoria Caterers had a duty to provide general security at such events by reason of provisions of the Alcohol and Beverage Control Law or the General Obligations Law (see Memorandum of Law in Opposition to Defendant's Summary Judgment Motion at 9-10), those statutes are not pleaded in either the Verified Complaint or the Verified Bill of Particulars. Nor does Plaintiff show that the New York City Administrative Code is the basis for a duty, either in the pleaded section, §20-359, or otherwise. The Court recognizes that "[a] plaintiff may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's proof" (see McCovey v Williams, 105 AD3d 819, 819-20 [2d Dept 2013]), but Plaintiff makes no such evidentiary showing with respect to an unpleaded statute or ordinance.

It may be that a duty to protect a patron of a bar or restaurant from an attack by another patron will be found where the owner has knowledge of the offending patron's propensity to such conduct (see Kranenberg v TKRS Pub, Inc., 99 AD3d at 768; Roberts v Nostrand Hillel Food, Inc., 90 AD3d 1011, 1011 [2d Dept 2011].) Here, Plaintiff recounts four prior incidents with defendant Vishnyakov; two at events held in December 2008 and December 2009 at venues other than Astoria Caterers; and two at Astoria in September 2009 and March 2010. Plaintiff does not assert that he told anyone at Astoria Caterers about the incidents at other venues, and provides no other evidence that Astoria knew, or should have or could have known, about them.

As to the two prior incidents at Astoria Caterers, Plaintiff asserts only that, after each of the incidents, he complained about "the lack of security" (Affidavit of Merit ¶¶ 18, 19.) There is no assertion that, after either of the two prior incidents, Plaintiff complained specifically about defendant Vishnyakov, and no other evidence is offered that would allow an inference that Mr. Vishnyakov, rather than Plaintiff or some identified third-person, was the miscreant, or that would allow Astoria Caterers to reach that conclusion. Nor is there any assertion that on April 23, 2010 [*6]Plaintiff alerted anyone about Mr. Vishnyakov's presence, and no suggestion as to any precautionary action Astoria Caterers should have or could have taken if so warned.

Although, as Plaintiff correctly contends, issues of proximate cause and foreseeability are questions for a jury, there are exceptions (see Silver v Sheraton-Smithtown Inn, 121 AD2d 711, 712 [2d Dept 1986].) Here, Plaintiff fails to proffer that modicum of proof sufficient to raise triable issues.

The motion of defendant Astoria Caterers, Inc. is granted, and the Verified Complaint as against it is dismissed. Since the papers on this motion do not address the status of the action as against defendant Viktor Vishnyakov or the status of Astoria Caterers's third-party action against Laura Goldman and Roman Goldman and "Only You," An International Dating Club, entry of judgment must await further proceedings (see CPLR 3212[e][2].)

April 21, 2014___________________

Jack M. Battaglia

Justice, Supreme Court