Branham v. Loews Orpheum Cinemas, Inc.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered November 12, 2004, which denied defendant-appellant Loews’s motion for summary judgment, reversed, on the law, without costs, the motion granted and the complaint dismissed as against Loews. The Clerk is directed to enter judgment in favor of Loews dismissing the complaint as against it. On January 11, 1998 plaintiff Lottie Branham went to see the movie “Titanic” with her friend Isadora Mulzac at the Loews Cinema at 86th Street in Manhattan. At some point during the film, plaintiff left the theater to use the restroom. As she left the theater by the center aisle, she did not observe anyone walking, sitting or standing in the aisle. Plaintiff testified at her deposition that she was gone from the theater for seven or eight — 320 — minutes, although she was not sure. She also testified that there was no line at the restroom and that she did not stop anywhere else while walking to or returning from the restroom. According to plaintiff, it was very dark in the theater at the time she left and when she returned. She did not observe any lights along the floor of the center aisle, nor did she see any lighted exit signs or lights on the theater walls. Upon returning from the restroom, plaintiff walked down the same center aisle and began looking for her seat. She did not observe any obstructions in the aisle until she suddenly stumbled over something. Subsequently, she discovered that she had tripped over a nine- or ten-year-old child, a boy, who was sitting in the aisle. Plaintiff fell over the boy, sustaining various injuries including a twisted knee and fractured arm. Plaintiff remained there until the police and ambulance personnel came to assist her. Plaintiff commenced the instant action for personal injuries against defendant Loews, the operator of the theater, and the owners of the premises.1 In her complaint, she alleged that defendants were negligent in failing to maintain the premises in a reasonably safe condition by permitting a child to sit in the aisle of a darkened movie theater, thereby creating a tripping hazard, and by failing to have adequate lighting in the theater during the movie. During discovery, Loews’s manager, Ruben Fernandez, testified at deposition that the theater had ceiling floodlights, 8 to 10 lighted wall sconces and aisle lighting running along the carpeted center aisle. According to Fernandez, the ceiling lights were turned off during the film and the wall sconces were dimmed. However, the aisle lighting remained on throughout the entire day and created a noticeable path up to the front of the theater. Fernandez further testified that it was “strictly prohibited” for people to sit in or obstruct the aisles, and that he knew of no prior occasions when such conduct had occurred. The theaters were inspected by a Loews employee prior to each film and it was Loews’s policy to have an employee conduct an “aisle check” every 15 to 20 minutes during the film. According to Fernandez, the purpose of the aisle check was to look for illegal smokers, to ensure that the temperature in the theater was comfortable, to make sure the movie was running properly and to check for “any other obstructions” that might interfere with — 321 — the patrons’ enjoyment of the film. Fernandez did not recall the names of the ushers working on the date of plaintiffs injury and although a daily inspection log indicating when the aisle checks were conducted was kept, he did not think Loews kept those records beyond the date when they were made. Loews moved for summary judgment, arguing lack of actual or constructive notice of the boy sitting in the aisle. Relying on plaintiffs deposition testimony that she was absent for only seven or eight minutes and did not observe any obstructions in the aisle when she left to use the restroom, Loews argued that the boy could not have been in the aisle for a sufficient period of time to support a finding of constructive notice. Loews further argued that Fernandez’s testimony established that the lighting was adequate and no other evidence established a violation of any building code provision. In opposition, plaintiff argued that Loews failed to meet its initial burden of making a prima facie showing of entitlement to judgment as a matter of law, since Fernandez’s testimony of general inspection practices did not, in the absence of the inspection logs for the specific date, demonstrate a lack of notice. Plaintiff further argued that Loews failed to meet its burden of showing that the lighting in the theater met or exceeded the applicable code requirements. In addition, plaintiff submitted an affidavit from her friend, Ms. Mulzac, who stated that she had gone to the restroom prior to plaintiffs trip. On her way out, Mulzac noticed a young boy sitting in the aisle. Mulzac stated that she was in the restroom for 15 to 20 minutes and when she returned, the boy was still sitting in the same place in the aisle. Notably, Mulzac also stated that plaintiff was absent from the theater for 15 to 20 minutes while using the facilities, because “there was a long wait.” Aggregating the time periods covering both trips to the restroom, and making them consecutive, Mulzac estimated that the boy must have been in the aisle for 30 to 40 minutes prior to plaintiffs accident. Mulzac further averred that she did not see any ushers checking the aisle during the movie and that “the running lights along the aisle were insufficient to properly illuminate the aisle.” In reply, Loews argued that Mulzac’s affidavit was inconsistent with plaintiffs deposition testimony in material respects and was apparently tailored to avoid summary judgment. Loews also submitted photographs of the theater showing the aisle lighting during the running of a film and the results of an Internet search of the Building Department’s records showing that no violations had been issued to this theater for inadequate lighting. — 322 — The motion court denied Loews’s motion for summary judgment. It held that in light of Loews’s policy of having ushers patrol the aisles every 15 to 20 minutes during the movie, plaintiffs testimony and Mulzac’s affidavit together raised a triable issue of fact as to whether Loews had constructive notice of a boy sitting in the aisle of its darkened movie theater. Loews appeals and we now reverse. A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk (Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995]; Basso v Miller, 40 NY2d 233, 241 [1976]; Perez v Bronx Park S. Assoc., 285 AD2d 402, 403 [2001], lv denied 97 NY2d 610 [2002]). This duty applies with equal force to landowners and tenants who operate places of public assembly, such as theaters, and requires them to provide members of the public with reasonably safe premises, including safe means of ingress and egress (see Peralta v Henriquez, 100 NY2d 139, 143-144 [2003]; Gallagher v St. Raymond’s R.C. Church, 21 NY2d 554, 557 [1968]). However, in order to recover damages for an alleged breach of this duty, the plaintiff must first demonstrate that the defendant created or had actual or constructive notice of the hazardous condition which precipitated the injury (Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]; Beck v J.J.A. Holding Corp., 12 AD3d 238, 240 [2004], lv denied 4 NY3d 705 [2005]; Leo v Mt. St. Michael Academy, 272 AD2d 145, 145-146 [2000]). To constitute constructive notice, which is the predicate for liability alleged in this action, the defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant or its agents to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Perez, 285 AD2d at 403). On this motion for summary judgment, defendant Loews had the burden of making a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As plaintiff does not argue that Loews had actual notice of the boy, Loews’s burden was to show a lack of constructive notice, i.e., that the boy was not in the aisle for a sufficient length of time for its employees to discover and remove him. In our view, Loews met this burden (see Ulu v ITT Sheraton Corp., 27 AD3d 554, 554-555 [2006]). Loews relies primarily on plaintiffs deposition testimony to — 323 — show a lack of constructive notice. According to that testimony, plaintiff left the theater by the center aisle in order to use the restroom and saw no one in the aisle at that time, nor at any earlier time. She was gone for approximately seven or eight minutes and returned directly to the theater. While returning by the same aisle and looking for her seat, plaintiff stumbled over a young boy sitting on the aisle floor. Based on these facts, Loews made a prima facie showing that the boy could not have been sitting in the aisle for more than eight minutes and must have arrived some time after plaintiff left for the restroom. This time line, supplied by plaintiff’s own testimony, negates any inference that the boy was present for a sufficient period of time to permit an inference of constructive notice. In response to this prima facie showing, the burden shifted to plaintiff to produce evidence sufficient to raise a triable issue of fact on the issue of constructive notice (Alvarez, 68 NY2d at 324). In finding a triable issue, the motion court’s reliance on Loews’s internal aisle-check policy was error. While a defendant’s internal rules may be admissible as evidence of whether reasonable care was exercised, such rules must be excluded, as a matter of law, if they require a standard of care which transcends the traditional common-law standard of reasonable care under the circumstances (see Gilson v Metropolitan Opera, 5 NY3d 574, 577 [2005]; Crosland v New York City Tr. Auth., 68 NY2d 165, 168-169 [1986]; Prince v New York City Hous. Auth., 302 AD2d 285, 286 [2003]; Clarke v New York City Tr. Auth., 174 AD2d 268, 275-276 [1992]). In the instant case, Loews’s aisle-check policy required one of its employees to patrol the theater aisles every 15 to 20 minutes to check for smokers or obstructions and to otherwise make sure that nothing was interfering with the customers’ enjoyment of the film. Even when viewed in a light most favorable to plaintiff, this internal policy imposed a higher duty of care than is required under the law. Thus, the motion court’s reliance on it in finding a triable issue as to constructive notice was erroneous (Gilson, 5 NY3d at 577 [theater’s internal policy requiring patrons to be escorted with flashlights after house lights went down exceeded ordinary standard of care and could not be basis for liability]).2 The remaining evidence offered by plaintiff in opposition also fails to raise a triable issue. Although Mulzac’s affidavit estimates that the boy must have been sitting in the aisle for 35 — 324 — to 40 minutes, which arguably might give rise to an inference of constructive notice, such affidavit is more notable for its glaring inconsistencies with plaintiffs own version of the accident. For instance, while plaintiff estimated she was absent for 7 or 8 minutes, Mulzac more than doubles that amount to 15 to 20 minutes. Further, while plaintiff testified that there was “no line” at the restroom, Mulzac stated in her affidavit that plaintiff took 15 to 20 minutes in the restroom because there was a “long wait.” Finally, and most significantly, while plaintiff testified that she observed no one in the aisle when she left for the restroom, Mulzac impliedly suggests the opposite by indicating that the boy was present in the aisle during her own absence from the theater which, according to Mulzac, immediately preceded plaintiffs departure. Thus, far from raising a triable issue of fact as to the duration of the boy’s presence, Mulzac’s affidavit gives rise to entirely different questions which cast grave doubt on her credibility. While issues of fact and credibility ordinarily may not be determined on a motion for summary judgment (Santos v Temco Serv. Indus., 295 AD2d 218, 218-219 [2002]), courts have occasionally disregarded affidavits or other evidence submitted in opposition to such a motion where they directly contradict the plaintiffs own version of the accident and are plainly tailored to avoid dismissal of the action (see Gloth v Brusco Equities, 1 AD3d 294 [2003]; Rodriguez v New York City Hous. Auth., 304 AD2d 468, 469 [2003]; Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]). In this case, Mulzac’s affidavit is so completely at odds with plaintiffs deposition testimony and so clearly designed to lengthen the time period of the boy’s presence in the aisle in order to raise a triable issue as to constructive notice, that this is one of those rare occasions where such evidence must be disregarded by this Court. In the absence of Mulzac’s affidavit and the motion court’s erroneous reliance on Loews’s aisle-check policy, there is no other record evidence from which a jury could infer that the boy was in the aisle for a sufficient period of time for Loews to discover and remove him (see Gibbs v Port Auth. of N.Y., 17 AD3d 252, 255 [2005]). Accordingly, given “the total lack of evidence” in that regard, summary judgment should have been granted in favor of Loews on this branch of plaintiff’s claim (Berger v ISK Manhattan, Inc., 10 AD3d 510, 512 [2004]). Nor is any triable issue raised in connection with plaintiffs allegation of inadequate lighting in the theater. Loews pointed to testimonial evidence showing that the wall sconces were dimmed during the movie, but that the aisle lighting remained — 325 — on throughout the entire day and created a “very noticeable” well-lit path down to the front row. On reply, Loews also produced photographs which confirm the brightness of these aisle lights, despite the relative darkness of the theater. In response to this prima facie showing, plaintiff cited her own deposition testimony that she did not observe any lights in the theater and Mulzac’s affidavit stating that the aisle lighting was “insufficient.” Since, again, there is a fundamental contradiction between plaintiff’s and Mulzac’s factual statements regarding the presence of lighting, we disregard Mulzac’s affidavit and find that plaintiffs testimony alone is insufficient as a matter of law to raise a triable issue of fact on her claim of inadequate lighting. While plaintiff correctly notes that it is Loews’s initial burden to make a prima facie showing of adequate lighting in the theater, we disagree with her argument that the testimony and photographs offered by Loews were insufficient to meet that burden. Plaintiffs arguments concerning alleged building code violations are likewise unavailing. We reject plaintiffs suggestion that a human being’s transient presence in a theater aisle violates Administrative Code of the City of New York § 27-532. Moreover, since the testimony and photographs were sufficient to show the adequacy of the lighting in the theater, plaintiffs conclusory argument to the contrary, based on the Mulzac affidavit we have already discredited, does not require a trial. The dissent takes the position that Loews’s internal aisle-check policy, together with certain “record facts,” supports the inference that Loews had actual notice of the boy in the aisle, an argument never advanced by plaintiff on this appeal. The dissent’s theory and the hypotheticals offered in support of it have no bearing on this case because they assume or supply certain facts not in the record. For example, both hypotheticals assume that the internal policy was followed without deviation, although there is no evidence that the internal policy was complied with at all on the date of plaintiffs accident. More significantly, the hypotheticals also supply a crucial fact missing from the record—the exact amount of time the boy was sitting in the aisle. If such evidence existed, there would be no dispute on the issue of constructive notice. The dissent’s argument is nothing more than an attempt to transform the requirement of actual notice to a possibility of actual notice. Critically, the evidence supplied by plaintiff herself demonstrates that the boy was present in the aisle for a very short time—eight minutes or less. Thus, the dissent’s actual notice theory is premised on the mere possibility that one of — 326 — Loews’s aisle checks conducted every 15 or 20 minutes might have overlapped with the boy’s presence in the aisle, thereby providing actual notice of the dangerous condition.3 This possibility, as can readily be discerned, is nothing more than rank speculation since there is no evidence in the record as to what time plaintiff went to the restroom, what time the boy arrived in the aisle (it could have been five seconds before plaintiffs fall), and what time the last aisle check occurred. While proof that a defendant recently inspected an area that included a permanent or continuing dangerous condition can give rise to an inference of actual notice (see Baker v International Paper Co., 226 AD2d 1007, 1008-1009 [1996] [inspection by defendant’s employees on day before accident permitted inference of actual notice of “the old, rusted material and other debris”]), no such inference is available here where there is no actual proof of a recent inspection and the condition is a transient one. We also note that Loews’s failure to produce the aisle-check records has no bearing on the outcome. First, as noted, since there is no evidence as to what time the boy arrived in the aisle, the aisle-check logs would afford no inference as to how long he was there or whether Loews’s employee should have seen him. For example, if the aisle-check log revealed that the last check occurred at 3:45 p.m., that time has no legal significance absent evidence regarding when the boy arrived or when plaintiff left for the restroom. In short, because plaintiffs own testimony demonstrates that the boy was present for only a short period of time and Loews’s inspection records, even if produced, would not give rise to an inference of actual or constructive notice, the failure to produce those records did not prevent Loews from meeting its initial burden of showing a lack of actual or constructive notice (Deveau v CF Galleria at White Plains, LP, 18 AD3d 695, 696 [2005] [sanction for spoliation of videotape not warranted where plaintiff not prejudiced by loss]; Quinn v Holiday Health & Fitness Ctrs. of N.Y., Inc., 15 AD3d 857, 857-858 [2005] [lack of proof of recent inspections irrelevant where defect not visible and apparent]). We also note that unlike Dorsa v National Amusements (6 AD3d 652 [2004]), cited by the dissent, the record does not reveal that plaintiff sought any relief before the motion court for Loews’s spoliation of evidence and, therefore, she is bound by the record as it existed before the motion court. — 327 — The dissent’s attempt to rehabilitate the Mulzac affidavit is not persuasive. Whether her affidavit “simply differs” from plaintiffs deposition testimony or “directly contradicts” it, the facts remains that it is inconsistent with plaintiffs version of the facts on the critical issue of constructive notice. Reinforcing our “unrelenting and unreasonable cynicism” concerning Mulzac’s credibility is the unanswered question raised in her affidavit: if Mulzac knew that the boy was obstructing the darkened aisle during her trip to the restroom and at the time of plaintiffs departure, why didn’t she warn her friend or Loews personnel of the dangerous condition? Under our precedents, the affidavit was properly disregarded. Concur—Buckley, P.J., Nardelli, Williams and Gonzalez, JJ. Footnotes [1] The owners were dismissed from the case during motion practice, a determination that is not at issue on this appeal. [2] Although Loews failed to raise this argument before the motion court, it correctly argues that purely legal issues may properly be considered by this Court for the first time on appeal (see Public Serv. Mut. Ins. Co. v Zucker, 225 AD2d 308, 309 [1996]). [3] While the dissent makes much of plaintiffs disclaimer that she was “not sure” of the precise length of her absence, the words “seven or eight minutes” were supplied by her and a fair reading of her testimony indicates that it was her best approximation.