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TROTT v. MERIT DEPT. STORE

106 A.D.2d 158 (1985)

Charles Trott, Jr., Appellant, v. Merit Department Store et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

January 31, 1985

Attorney(s) appearing for the Case

Martin S. Rothman of counsel (Richard Godosky and Alyne I. Diamond with him on the brief; Weiss, Molod, Berkowitz & Godosky and Seligson, Rothman & Rothman, attorneys), for Merit Department Store, respondent.

Michael W. Kirshon of counsel (Perry Satz, P. C., attorney), for Gary L. Bashor, respondent.

Terry D. Horner of counsel (Myra I. Packman on the brief; Meiselman, Farber, Stella & Eberz, P. C., attorneys), for appellant.

FEIN, LYNCH and MILONAS, JJ., concur with ASCH, J.; SANDLER, J. P., concurs in a separate opinion.

ASCH, J.

It is essentially undisputed that on December 14, 1976, at approximately 9:00 P.M., defendant Bashor, a security guard employed by defendant Merit, observed plaintiff stealing property from a woman in the shopping mall. He chased the plaintiff, shouted warnings, fired once up in the air, shouted another warning and then discharged his shotgun to the ground, hitting plaintiff in the back. Plaintiff...

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