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FAMBRO v. CITY OF NEW YORK

Index No. 151804/14. Appeal No. 16008. Case No. 2021-00164.

205 A.D.3d 608 (2022)

169 N.Y.S.3d 601

2022 NY Slip Op 03441

Kaseem Fambro et al., Respondents, and Phillip Gaynor, Respondent-Appellant, v. City of New York et al., Respondents, Lewis Foods, Doing Business as McDonald's Corporation, et al., Appellants-Respondents, et al., Defendants. Gregory Kearse, Nonparty Appellant-Respondent.

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

Decided May 26, 2022.

Attorney(s) appearing for the Case

Stonberg Moran, LLP, New York ( Carmen L. Borbon of counsel), for Lewis Foods, appellant-respondent.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York ( Patrick J. Lawless of counsel), for Affinita Security Group, Inc and Gregory Kearse, appellants-respondents.

Levine & Gilbert, New York ( Richard A. Gilbert of counsel), for Phillip Gaynor, respondent-appellant.

Getz Braverman, PC, Bronx ( Michael I. Braverman of counsel), for Kaseem Fambro, respondent.

Law Office of Ellyn I. Bank, P.C., New York ( Ellyn I. Bank of counsel), for Darrell Gibbs, respondent.

Sylvia O. Hinds-Radix , Corporation Counsel, New York ( MacKenzie Fillow of counsel), for municipal respondents.

Concur—Kern, J.P., Oing, Singh, Moulton, Scarpulla, JJ.

These consolidated actions alleging assault, negligence, negligent hiring and retention, false arrest, and malicious prosecution arise from a physical altercation in a McDonald's restaurant in Times Square at 4 a.m. between plaintiff customers and defendant/nonparty Gregory Kearse, a security guard employed by defendant Affinita, which had contracted with the owner of the restaurant, defendant Lewis Foods, to provide security at the premises. The identity of the primary aggressor...

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