Joseph R.C. v. Bronx Underground LLC — 118 A.D.3d 583

Majority

p. 583

Joseph R.C. et al., Appellants, v Bronx Underground LLC, Defendant, and First Lutheran Church of Throggs Neck et al., Respondents.

[987 NYS2d 161]

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 10, 2013, which granted the motions of defendants First Lutheran Church of Throggs Neck (the Church) and David Rose for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

Summary judgment was properly granted in favor of the Church, in this action where infant plaintiff was injured when he was struck in the head by an unidentified participant at a music event held at the Church’s premises and hosted by defendant Bronx Underground LLC. The Church owed no duty to supervise the subject music event, or to otherwise retain control of its premises (see McGlynn v St. Andrew Apostle Church, 304 AD2d 372 [1st Dept 2003], lv denied 100 NY2d 508 [2003]).

Dismissal of the complaint as against Rose was also proper where Rose, a principal of Bronx Underground LLC, did not

p. 584

commit an affirmative tort so as to subject him to personal liability to plaintiff (see Peguero v 601 Realty Corp., 58 AD3d 556 , 559 [1st Dept 2009]). Nor did Rose exercise complete dominion over the LLC alleged to have committed the wrong (see Brito v DILP Corp., 282 AD2d 320 [1st Dept 2001]; see also Mendez v City of New York, 259 AD2d 441 [1st Dept 1999]).

We have considered plaintiffs’ remaining contentions, including that the motion court improperly resolved issues of credibility on a motion for summary judgment, and find them unavailing.

Concur — Tom, J.E, Moskowitz, DeGrasse, ManzanetDaniels and Clark, JJ.

Cases cited

McGlynn v. St. Andrew the Apostle Church 304 AD2d 372 N.Y. App. Div. 2003-04-10 p. 583
Peguero v. 601 Realty Corp. 58 AD3d 556 N.Y. App. Div. 2009-01-29 at 559 p. 584
Mendez v. City of New York 259 AD2d 441 N.Y. App. Div. 1999-03-30 p. 584