Ullrich v Bronx House Community Ctr.

Ullrich v Bronx House Community Ctr. 2012 NY Slip Op 06730 Decided on October 9, 2012 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 9, 2012
Sweeny, J.P., Catterson, Acosta, Freedman, Román, JJ.
7989 300805/07

[*1]Adam Ullrich, Plaintiff-Respondent,

v

Bronx House Community Center, et al., Defendants-Appellants.




Wenick & Finger, P.C., New York (Frank J. Wenick of
counsel), for appellants.
Wingate, Russotti & Shapiro, LLP, New York (William P.
Hepner of counsel), for respondent.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered January 12, 2012, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Dismissal of the complaint is warranted in this action where plaintiff was injured during a basketball game at defendants' facility, when another player punched him in the jaw. Plaintiff and his father both testified that the assault was unprovoked and unanticipated, and that there was no warning of an impending assault. Thus, by plaintiff's own account, the assault occurred in such a short span of time that even the most intense supervision could not have prevented it (see e.g. Espino v New York City Bd. of Educ., 80 AD3d 496 [2011], lv denied 17 NY3d 709 [2011]).

Plaintiff's father testified that he observed a dispute on the basketball court involving the assailant and other club members several months earlier. However, plaintiff failed to show that the notice was sufficiently specific for defendants to have reasonably anticipated the assault upon plaintiff (see Kamara v City of New York, 93 AD3d 449, 450 [2012]). Defendants' failure to terminate the assailant's club membership after the earlier incident was not the proximate cause of the assault, which was an intentional and unforeseeable act of a third party (see Sugarman v Equinox Holdings, Inc., 73 AD3d 654, 655 [2010]). The Decision and Order of this Court entered herein on June 19, 2012, is hereby recalled and vacated (see M-3073 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2012 [*2]

CLERK