| Knickerbocker v Ulster Performing Arts Ctr. |
| 2010 NY Slip Op 04901 [74 AD3d 1526] |
| June 10, 2010 |
| Appellate Division, Third Department |
| Lottie Knickerbocker, Appellant, v Ulster Performing Arts Center,Respondent. |
—[*1] Damelio, Goergen, Manson & Huenke, Middletown (David B. Manson of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Egan, Jr., J.), entered January 8,2009 in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff attended a concert at defendant's theater. As plaintiff was leaving before the concertended, she fell down 10 stairs, injuring herself. She commenced this action alleging negligentmaintenance of the premises. Defendant successfully moved for summary judgment dismissingthe complaint, prompting plaintiff's appeal.
Supreme Court properly granted defendant's motion for summary judgment. Throughsubmission of the deposition testimony of its managing director and the affidavit of its headusher, defendant met its burden of establishing that it maintained its property in a reasonably safecondition. The director testified that she was unaware of any complaints concerning the venue inthe months preceding the accident, she did a walk-through of the theater prior to the concert andthe stairs were illuminated by step and aisle lights. The head usher affirmed that the carpetingwas newly installed, not loose and had no tears or defects. He further stated that no one had evercomplained about the carpeting. In addition, he witnessed plaintiff fall and saw her legs give outwhile she was on the stairs a few steps down from her seat. Defendant also submitted plaintiff'sdeposition testimony, where she stated that she did not have trouble seeing immediately prior tothe accident and did not notice any defects in the carpet either before or after her fall. This [*2]evidence was sufficient to establish that defendant met its duty ofproperly maintaining its theater (seeBranham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]).
Plaintiff failed to raise a triable question of fact on any material issue. Plaintiff testified thather heel felt like it caught on the carpet when she exited the aisle from her seat onto the stairs,before even descending a single step. Although this differs from the usher's version in locationand how she fell, plaintiff's version was based upon an assumption—she was unsureexactly what caused her to fall. She did not notice any defects in the carpet, defendant'semployees stated that they had not seen any defects and no complaints were made regarding thecarpet. Pictures in the record do not disclose any defects. Plaintiff failed to raise any factual issueas to whether the carpet was maintained in a defective or dangerous condition (compareRekemeyer v Knickerbocker Furniture Co., 222 AD2d 873, 874 [1995]).
Plaintiff's complaint, bill of particulars and amended bill of particulars do not includeinadequate lighting as an identified defect in the theater which caused her fall. Accordingly, thisbelatedly-alleged condition need not be considered when reviewing defendant's summaryjudgment motion (see Lee v Laird,66 AD3d 1302, 1303 [2009]; Hall vBarth, 36 AD3d 1050, 1051 n [2007]). Even had plaintiff timely or properly alleged thatinadequate lighting caused her fall, she failed to provide evidence to support that allegation(see Branham v Loews Orpheum Cinemas, Inc., 8 NY3d at 932). Plaintiff testified thatthe lights on the stairs were dim, but she did not recall what type of lighting was present in thetheater and she did not have trouble seeing just prior to the accident. Importantly, she neverstated that a lack of lighting caused her to fall (compare Macri v Smith, 12 AD3d 896, 897 [2004], withSousie v Lansingburgh Boys & Girls Club, 291 AD2d 619, 620 [2002], and Whiting vBella Vista Dev. Corp., 267 AD2d 662, 664 [1999]). Because plaintiff failed to raise triableissues of fact, Supreme Court properly granted defendant's motion for summary judgment (see Salerno v Street Retail, Inc., 38AD3d 515, 516 [2007]).
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.