                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   518042
________________________________

DOUGLAS E. MILTON SR.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

I.B.P.O.E. OF THE WORLD FOREST
   CITY LODGE, #180,
                    Respondent.
________________________________


Calendar Date:   September 8, 2014

Before:   McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                             __________


      Guttman & Wallace, Ithaca (Elizabeth A. Reiter of counsel),
for appellant.

      Levene, Gouldin & Thompson, LLP, Binghamton (Maria E. Lisi-
Murray of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered October 31, 2012 in Tompkins County, which granted
defendant's motion for summary judgment dismissing the complaint.

      Defendant is a fraternal organization that owns a lodge
building which contains a social room with a bar. One morning at
approximately 1:30 a.m., plaintiff exited the main entrance of
defendant's lodge after drinking approximately 12 beers over the
preceding 2½ hours. At that time, plaintiff had been a member of
defendant's lodge for approximately 14 years and its secretary
for 12 years. As he walked down the entrance stairs to the
lodge, headed to his home, he saw a person on the sidewalk. As
plaintiff reached the final step, the individual quickly opened a
                              -2-                518042

knife and slashed plaintiff's hand. As plaintiff tried to move
past his attacker, the individual cut him in the chest and, as
plaintiff tried to run away, he felt his attacker stabbing him in
the back. The attacker then fled and was never apprehended.

      Plaintiff commenced this action seeking damages for
injuries he sustained during the assault, alleging that defendant
was negligent in failing to provide adequate security and
lighting. Defendant moved for summary judgment. Supreme Court
granted that motion, dismissing the complaint. Plaintiff
appeals.

      Supreme Court properly granted defendant's motion for
summary judgment dismissing the complaint. Landowners have a
duty of reasonable care to maintain their property in a safe
condition; although they "have a common-law duty to minimize
foreseeable dangers on their property, including the criminal
acts of third parties, they are not the insurers of a visitor's
safety" (Maheshwari v City of New York, 2 NY3d 288, 294 [2004];
see Haire v Bonelli, 107 AD3d 1204, 1204-1205 [2013], lv denied
22 NY3d 852 [2013]; Barksdale v Henry, 228 AD2d 947, 948 [1996];
Polomie v Golub Corp., 226 AD2d 979, 980 [1996]). Notably, "even
where there is an extensive history of criminal conduct on the
premises, the landowner cannot be held to a duty to take
protective measures unless it is shown that he or she either
knows or has 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 the visitor" (Haire v Bonelli,
107 AD3d at 1205 [internal quotation marks, ellipses, brackets
and citations omitted]; see Crowningshield v Proctor, 31 AD3d
1001, 1002 [2006]; Karp v Saks Fifth Ave., 225 AD2d 1014, 1016
[1996]). "The scope of the duty varies with the foreseeability
of the potential harm" (Ishmail v ATM Three, LLC, 77 AD3d 790,
792 [2010], lv denied 16 NY3d 713 [2011] [citation omitted]).
Stated another way, "no duty is imposed to protect . . . against
unforeseeable and unexpected assaults" (O'Connor v Syracuse
Univ., 66 AD3d 1187, 1189 [2009], lv dismissed 14 NY3d 766
[2010]; see Barksdale v Henry, 228 AD2d at 948), and "landowners
have a duty to control third persons only when they have the
opportunity to control such persons and are reasonably aware of
the need for such control" (Crowningshield v Proctor, 31 AD3d at
                              -3-                518042

1002 [internal quotation marks and citation omitted]). Prior
crimes need not be identical to a present crime in order to put a
landowner on notice; "the inquiry of foreseeability depends upon
the location, nature and extent of those previous criminal
activities and their similarity, proximity or other relationship
to the crime in question" (Haire v Bonelli, 107 AD3d at 1205
[internal quotation marks and citation omitted]; see Polomie v
Golub Corp., 226 AD2d at 980; Karp v Saks Fifth Ave., 225 AD2d at
1016). Finally, although foreseeability is generally an issue to
be resolved by the factfinder, it may be determined as a matter
of law where the facts are undisputed and permit only one
inference to be drawn therefrom (see Haire v Bonelli, 107 AD3d at
1205; see also Ruiz v Griffin, 71 AD3d 1112, 1115 [2010]).

      Plaintiff and three of defendant's other officers testified
that the police were called to the lodge on more than one
occasion, probably more than once per year. Plaintiff recalled
two specific disturbances in the years before his attack. In one
incident, two individuals got into a "scuffle" inside the lodge
and the police were called, but the individuals left before
police arrived. In the other incident, two nonmembers were
apparently "at each other's throats" in the lodge, but plaintiff
himself intervened and stopped it without calling the police.
Although he mentioned that one of the individuals involved in
that incident had a pistol, plaintiff did not indicate that the
weapon was used or even displayed during the incident. Two of
defendant's officers recalled an incident where a brick was
thrown through the lodge's window from the inside out during a
break-in, but no other details of that incident were mentioned.
While one of defendant's officers stated that fights occurred
both inside and outside the lodge, the record does not contain
any more specific information about any fights other than the two
described by plaintiff. When asked a single question about
whether he remembered an incident where one named individual
stabbed another named individual, one of the officers responded
that he "somewhat" remembered it, but the record contains no
follow-up questions or further information about this situation
such as when it occurred, where it occurred, or how it was in any
way related to defendant or defendant's property.
                              -4-                518042

      Defendant met its burden of showing that the evidence was
"insufficient to establish the existence of a duty upon
defendant" to protect patrons from such a criminal attack, as the
evidence does not prove that the attack on plaintiff was
foreseeable (Karp v Saks Fifth Ave., 225 AD2d at 1016; see
Colarossi v University of Rochester, 2 NY3d 773, 774 [2004];
O'Connor v Syracuse Univ., 66 AD3d at 1189; Crowningshield v
Proctor, 31 AD3d at 1002; Barksdale v Henry, 228 AD2d at 948-
949). Although prior fights had occurred on defendant's
premises,1 they appear to be minor disturbances and were mostly
inside. One individual who was in one of those prior arguments
possessed a pistol, but the record does not indicate that the
weapon was actually involved in that situation. The information
regarding most of these incidents was so vague that they could
not even be compared to the incident that is the subject of this
action. Based on this record, these prior situations were not
sufficiently similar to the present attack, such that defendant
would be on notice to expect or foresee that a stranger was
likely to spontaneously slash and stab one of defendant's members
or guests outside the lodge on its premises (see Haire v Bonelli,
107 AD3d at 1205-1207; Crowningshield v Proctor, 31 AD3d at 1003;
Curcio v East Coast Hoops, Inc., 24 AD3d 997, 998 [2005], lv
denied 6 NY3d 710 [2006]; Polomie v Golub Corp., 226 AD2d at 980-
981; compare DeCrescente v Catholic Charities of the Diocese of
Albany, 89 AD3d 1272, 1276 [2011], lv dismissed and denied 18
NY3d 943 [2012]). Plaintiff failed to raise a question of fact
regarding defendant's duty. Plaintiff's expert averred that the


    1
        Plaintiff testified both that he was first assaulted on
the final stair of the entrance steps and that the assault
occurred on the sidewalk outside of the lodge. Based on this
conflicting testimony, there is a question of fact as to whether
plaintiff was on defendant's property at the time of the attack.
If plaintiff was attacked on the public sidewalk, rather than on
defendant's premises, defendant may not be liable for such attack
(see Martinez v New York City Hous. Auth., 238 AD2d 167, 168
[1997]; see generally Galindo v Town of Clarkstown, 2 NY3d 633,
636 [2004]). Viewing the evidence in a light most favorable to
plaintiff for the purposes of this motion, we will assume that
the attack began on defendant's premises.
                              -5-                518042

lodge is located in a high-crime neighborhood, but general
knowledge of "'ambient neighborhood crime alone is insufficient
to establish foreseeability'" (Johnson v City of New York, 7 AD3d
577, 578 [2004], lv denied 4 NY3d 702 [2004], quoting Novikova v
Greenbriar Owners Corp., 258 AD2d 149, 153 [1999]; see Perez v
Real Tuff Piping & Heating, Inc., 73 AD3d 882, 883 [2010]; Six
Anonymous Plaintiffs v Gehres, 68 AD3d 1177, 1178 [2009], lv
denied 14 NY3d 710 [2010]).

      Without proof of similar prior criminal activity,
defendant's duty to protect its members and patrons from violent
armed attacks outside the lodge never arose (see Haire v Bonelli,
107 AD3d at 1207). Inasmuch as defendant did not have any such
duty to plaintiff, we need not address whether defendant's
security measures were adequate. However, even if defendant had
a duty to protect plaintiff and breached that duty by providing
inadequate security, defendant would be entitled to summary
judgment on the issue of proximate cause. It was not foreseeable
that an individual with no established connection to defendant
would spontaneously approach and stab a person stepping off the
final stair from the lodge to the sidewalk. This unexpected,
intervening criminal act broke any causal nexus between any
alleged lack of security by defendant and the injuries sustained
by plaintiff (see Maheshwari v City of New York, 2 NY3d at 295;
see also Colarossi v University of Rochester, 2 NY3d at 774).
Although plaintiff's complaint and bill of particulars also
alleged inadequate lighting as an aspect of defendant's negligent
maintenance of its property, on appeal plaintiff has abandoned
that portion of his argument. Hence, Supreme Court properly
granted defendant's motion for summary judgment dismissing the
complaint.

     Rose, Egan Jr., Devine and Clark, JJ., concur.
                        -6-                  518042

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
