VICTOR v. MANHATTAN BANK, 8 N.Y.3d 838 (2007)

2007 NY Slip Op 00231, 862 N.E.2d 782, 830 N.Y.S.2d 691

VICTOR CORONEL, Appellant, v. THE CHASE MANHATTAN BANK, Respondent.

No. 47 SSM 40.Court of Appeals of the State of New York.
Decided January 16, 2007.

APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered June 30, 2005. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, Bronx County (Kenneth L. Thompson, J), which had denied defendant’s motion for summary judgment dismissing the complaint, (2) granted the motion and (3) dismissed the complaint. The following question was certified by the Appellate Division: “Was the order of the Supreme Court, as reversed by this Court, properly made?”

Plaintiff commenced an action to recover damages for injuries sustained when he was shot in the face during an attempted robbery while using defendant bank’s ATM.

The Appellate Division concluded that plaintiff’s assertion that defendant’s outdoor ATM was located in a “high crime” neighborhood was insufficient to rebut defendant’s prima facie showing that there was no prior pattern of criminal activity at this particular ATM location which might have made the assault on plaintiff foreseeable; and that, in light of the unforeseeability determination, plaintiff’s claim that the lighting over the ATM was “very dim,” with some bulbs on and some off, in alleged violation of a statute, was insufficient to defeat defendant’s summary judgment motion where there was no evidence that the lighting conditions, even if dimmer than required, were a proximate cause of the attempted robbery and assault.

Coronel v Chase Manhattan Bank, 19 AD3d 310, affirmed.

Victor Coronel, appellant pro se.

Page 839

Barry, McTiernan Moore, New York City (Anthony J. McNulty of counsel), for respondent.

Before: Concur: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT.

OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. We agree with the Appellate Division that plaintiff failed to raise an issue of fact sufficient to defeat defendant bank’s summary judgment motion.