Branham v. Loews Orpheum Cinemas, Inc. ( 2007 )

8 N.Y.3d 931 (2007) 866 N.E.2d 448 834 N.Y.S.2d 503

LOTTIE BRANHAM, Appellant,
v.
LOEWS ORPHEUM CINEMAS, INC., Respondent, et al., Defendants.

Court of Appeals of the State of New York.

Decided April 3, 2007.

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.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

OPINION OF THE COURT

MEMORANDUM.

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 [2006]), 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 [1994]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; see also Gilson v Metropolitan Opera, 5 NY3d 574 [2005]).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.