On 9 November 2002, between 4:00 and 4:30 P.M., plaintiff walked into the theater to see “Eight Mile” while previews were in progress. She entered the theater with her daughter, a friend, and the friend’s daughter, through the rear door of the theater. They proceeded down the ramp on the right hand side of the theater and when she reached the aisle in front of the theater, she turned to her left, walked across the front aisle of the theater and while she was making a left turn to the opposite side of the theater, she slipped and fell and suffered injuries.
Plaintiff’s intention was to sit in the empty seats she observed in the fourth or fifth row of the theater. Her friend, friend’s daughter, and her own daughter were walking ahead of her when she slipped and fell.
Thereafter, plaintiff commenced a slip and fallpersonal injury action against the owner, defendant, of the movie theater where plaintiff slipped and fell on an alleged greasy substance and/or popcorn and candy while she was walking down an aisle close to the movie theater screen.
Plaintiff testified at her deposition that she did not see what caused her to fall because she was looking “straight ahead.” She testified that she heard a security guard call for someone to mop the floor after she fell and she heard one of the ambulance workers state that the floor was slippery in the area.
A New York Injury Lawyer said the defendants contend that summary judgment should be granted in their favor because the plaintiff cannot establish that the defendant had actual or constructive notice of the condition which caused plaintiff to fall.
Plaintiff opposes the motion and asserts that there are issues of fact as to whether the defendants had constructive notice of the slippery substance and/or popcorn and candy on the floor which caused plaintiff’s fall and that there are issues of fact as to whether inadequate lighting in the theater was responsible for plaintiff’s accident.
Plaintiff submitted an affidavit where she asserts for the first time that when she entered the theater, it took her approximately ten to fifteen minutes, to get from the back of the theater, to the aisle in the front, where her accident occurred; that there was a crowd of people in the aisle, who were moving slowly, in front of her as she walked from the back of the theater, to the front of the theater. A Queens Personal Injury Lawyer said the Plaintiff further contends in her affidavit that she does not know how long the greasy substance, and/or popcorn candy had been on the floor prior to her fall but one can reasonably surmise that such substance had been on the floor, for at least ten to fifteen minutes prior to the time she fell.
Moreover, in her affidavit attached to the motion papers, plaintiff asserts that the lighting in the theater was “dim” at the time of the occurrence and that the “lack of adequate lighting” prevented her from seeing anything on the floor as she walked from the back of the theater to the front of the theater.
Plaintiff asserts that her statements concerning the lighting “in no way” contradict her deposition testimony.
The Court’s Ruling:
It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. To obtain summary judgment, it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor and he must do so by tender of evidentiary proof in admissible form. A Westcester County Personal Injury Lawyer said that the the movant has made such showing, the burden now shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action.
In a slip and fall case, a plaintiff must establish that the defendant created the condition that caused the accident or had actual or constructive notice of the condition.
Here, the court finds that defendants have met their burden that they did not have notice of the slippery condition at the movie theater.
Defendants established, and plaintiff did not refute, that the theater was cleaned prior to the start of the movie that plaintiff went to see. Plaintiff’s contention is that the condition existed for at least fifteen minutes, which was the time that it took her to get from the back of the theater to the front of the theater, and that time period is sufficient to establish constructive notice. However, plaintiff was asked at her deposition how long she was in the theater prior to her fall and plaintiff never mentioned that it took her ten to fifteen minutes because there was a crowd of people in the aisle. She testified that she walked in and went down the ramp to the front of the screen. She continued to recount the steps she took prior to her fall but at no point did she indicate that she stopped or waited or that it took her fifteen minutes to get to the front of the theater.
Moreover, plaintiff contends that lack of lighting also caused her to slip and fall. However, she never mentioned in her deposition testimony that the theater was too dark for her to see the floor. She testified in her deposition that there was light even though it was not bright and further that she never looked down on the floor, only straight ahead. Even more telling, as defendants point out, is the fact that plaintiff never raised the issue of lighting in her Bill of Particulars. These issues were raised for the first time in her affidavit in opposition to defendants’ motion for summary judgment.
Further, the cases cited by plaintiff in support of her argument with respect to inadequate lighting do not apply in the case at bar. Those cases involved inadequate lighting on steps which caused the plaintiffs to trip and fall.
Viewing the evidence in the light most favorable to plaintiff, the court finds that there is no issue of fact which would require a trial for fact-finding resolution.
Plaintiff failed to demonstrate that defendants had notice of the substance that caused her to slip and fall on the date of incident. Her deposition testimony demonstrates that none of the criteria necessary to sustain a cause of action against the defendants has been met. Her affidavit attached to the motion papers raises two issues that plaintiff did not mention in her deposition.
It is firmly established that a court’s role is not one of resolving issues of credibility. Any inconsistencies that may exist between the deposition testimony of the plaintiff and her affidavit submitted in opposition to the summary judgment motion, generally present credibility issues for trial. However, it has also been established that where self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff’s own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant’s motion for summary judgment. The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned.
Here, plaintiff was asked at her deposition about the lighting conditions in the movie theater and about how long she was in the theater before her slip and fall. The issues that she raised in her affidavit submitted in opposition to defendant’s motion, even though they were significant and even though the questions were asked, were never mentioned by the plaintiff in her deposition. Significantly, the issue of lighting was not even mentioned in plaintiff’s Bill of Particulars.
Thus, the court is left with the conclusion that the issues of lighting and her ten to fifteen minute wait were not genuine but tailored to defeat defendants’ summary judgment motion.
Consequently, the defendant’s motion for summary judgment is granted and plaintiff’s complaint is dismissed.
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