Summary
holding that summary judgment must be granted because plaintiff failed to present sufficient evidence that defendant had actual or constructive notice of an obstruction in an aisle
Summary of this case from Villegas v. MaliskyOpinion
Decided April 3, 2007.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered July 27, 2006. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Edward H. Lehner, J.), which had denied defendant-respondent's motion for summary judgment, (2) granted the motion, and (3) dismissed the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of Supreme Court, properly made?"
Plaintiff commenced this action to recover for personal injuries she sustained in defendant's movie theater when she was returning to her seat after a visit to the restroom and allegedly tripped and fell over a child sitting in the aisle in the darkened theater.
Branham v. Loews Orpheum Cinemas, Inc., 31 AD3d 319, affirmed.
Dubow Smith, Bronx ( Michael Dubow of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Uniondale ( Kathleen D. Foley of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The Appellate Division order should be affirmed with costs and the certified question not answered upon the ground that it is unnecessary. Viewing the evidence in the light most favorable to plaintiff, as we must on defendant's motion for summary judgment ( see Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt, L.P., 7 NY3d 96), defendant Loews demonstrated its entitlement to summary judgment dismissing the complaint against it. In opposition, plaintiff failed to adduce sufficient evidence that Loews had actual or constructive notice of the transient obstruction — a boy sitting in the aisle — or that the lighting in the theater was inadequate ( see Piacquadio v. Recine Realty Corp., 84 NY2d 967; Gordon v. American Museum of Natural History, 67 NY2d 836; see also Gilson v. Metropolitan Opera, 5 NY3d 574).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.