Matz v. Nettles

Matz v Nettles (2016 NY Slip Op 02287)

Matz v Nettles

2016 NY Slip Op 02287

Decided on March 29, 2016

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 March 29, 2016
Friedman, J.P., Acosta, Andrias, Saxe, Feinman, JJ.

188 105982/05

[*1]Erik Matz, et al., Plaintiffs-Respondents,

v

Jessie Nettles, Defendant, Carlson, et al., Defendants-Appellants.

Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for appellants.

Martello & Lamagna, P.C., Garden City (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Paul Wooten, J.), entered August 14, 2014, which, insofar as appealed from, denied the motion of defendants Carlson, L.I.R. Management Corp., the Riese Organization Corporate Group and T.G.I. Friday's Inc. for summary judgment dismissing plaintiffs' claims for negligence and negligent infliction of emotional distress as against them, unanimously affirmed, without costs.

The court properly denied that part of defendants' motion seeking dismissal of plaintiffs' causes of action for negligence in failing to take minimal security precautions to protect those on their premises from the foreseeable criminal acts of third

parties (see Jacqueline S. v City of New York , 81 NY2d 288 [1993]; Wayburn v Madison Land Ltd. Partnership , 282 AD2d 301, 304 [1st Dept 2001]). Defendants' submissions failed to eliminate triable issues of fact as to whether defendant Nettles's aggressive acts against patrons on the premises of defendants' bar/restaurant throughout the evening made it reasonably foreseeable that Nettles's continued presence on the premises could lead to the physical injury of a patron

(see Rivera v 21st Century Rest. , 199 AD2d 14, 15 [1st Dept 1993]).

The motion court properly declined to dismiss plaintiffs' claim for negligent infliction of emotional distress. Although seeking dismissal of the complaint in its entirety, defendants never addressed the claim before the motion court and only raise their arguments for the first time on appeal (see e.g. Chisholm v Madison Sq. Garden Ctr. , 289 AD2d 168 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 29, 2016

CLERK