                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 17, 2015                     520667
________________________________

DEBRA A. DAILY, as
   Administrator of the
   Estate of JOEL STATES,
   Also Known as JOEL ERIC
   STATES, Deceased,
                    Appellant,                MEMORANDUM AND ORDER
      v

TOPS MARKETS, LLC,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   October 13, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.

                               __________


      Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Raymond
Schlather of counsel), for appellant.

      Kenney Shelton Liptak Nowak, LLP, Buffalo (Melissa A. Foti
of counsel), for respondent.

                               __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (O'Shea, J.),
entered April 14, 2014 in Chemung County, which granted a motion
by defendant Tops Markets, LLC to dismiss the complaint against
it.

      Joel States (hereinafter decedent) was consuming alcohol
and drugs with several companions when he passed out and appeared
to have trouble breathing at about 1:00 a.m. on January 20, 2013.
                              -2-                520667

His companions placed the then unconscious decedent in his own
car and drove the car to the parking lot of defendant Tops
Markets, LLC. They reportedly told Tops' employees at about 1:30
a.m. that there was someone in the parking lot who was
unconscious and in need of emergency medical care, but they made
no effort themselves to contact police or emergency medical
personnel. Instead, the companions left on foot, the Tops'
employees took no action and decedent died during the night
allegedly of the combined effects of intoxication and
hypothermia. Plaintiff, the administrator of decedent's estate,
commenced this action against decedent's companions and Tops,
asserting as to Tops that its employees negligently failed to
summon emergency assistance for decedent. Tops moved to dismiss
the complaint against it for failure to state a cause of action
(see CPLR 3211 [a] [7]). Supreme Court granted the motion and
plaintiff appeals.

      "In any negligence action, the threshold issue before the
court is whether the defendant owed a legally recognized duty to
the plaintiff" (Gilson v Metropolitan Opera, 5 NY3d 574, 576
[2005]). This is frequently a "difficult task [and,] [d]espite
often sympathetic facts in a particular case before them, courts
must be mindful of the precedential, and consequential, future
effects of their rulings, and limit the legal consequences of
wrongs to a controllable degree" (Lauer v City of New York, 95
NY2d 95, 100 [2000] [internal quotation marks and citations
omitted]; see Darby v Compagnie Natl. Air France, 96 NY2d 343,
347 [2001]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232
[2001]). Consonant with the premise that a moral duty does not
equate with a legal duty (see e.g. Pulka v Edelman, 40 NY2d 781,
786 [1976]), it is the general rule that "one does not owe a duty
to come to the aid of a person in peril" (Kranenberg v TKRS Pub,
Inc., 99 AD3d 767, 768 [2012] [internal quotation marks and
citation omitted]; see Seeger v Marketplace, 101 AD3d 1691, 1691
[2012]; McDaniel v Keck, 53 AD3d 869, 872 [2008], lv denied 11
NY3d 709 [2008]). Exceptions to the general rule exist, such as,
for example, a common carrier's duty to take reasonable action to
protect a passenger who is being assaulted (see Crosland v New
York City Tr. Auth., 68 NY2d 165, 169-170 [1986]; see generally
Restatement [Second] of Torts § 314A [setting forth a non-
exhaustive list of special relations giving rise to a duty to
                              -3-                  520667

aid]).

      Here, although Tops was open to shoppers, this did not
necessarily create an affirmative duty to come to the aid of
anyone who was anywhere on its property no matter how unrelated
such person's presence was to Tops' function as a grocery store.
Decedent was not a customer of Tops, neither he nor his
companions were on the premises for any activity related in any
manner to Tops' business, Tops' employees did not participate in
any fashion in the conduct of decedent's companions, it is not
alleged that Tops' employees saw or had any contact with decedent
on the premises, and Tops' employees did not take any actions
that put decedent in a worse position than the one in which his
companions left him. Under such circumstances, we agree with
Supreme Court that, notwithstanding a moral obligation, Tops was
not under an affirmative legal duty to assist decedent. The
remaining arguments are unavailing.

     Garry, Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
