The following papers numbered 1 to 21 were read on this motion by defendant, THEATER MAINTENANCE and CONSTRUCTION, INC. a/k/a T & M THEATRE CONSTRUCTION INC., for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint and all cross-claims asserted against it:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits-Memo of Law........1 - 6

Regal Entertainment Affirmation in Opposition...........7 - 12

Seating Concepts Affirmation in Opposition.............13 - 15

Plaintiff's Affirmation in Opposition..................16 - 18

Reply Affirmation......................................19 - 21

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This is an action for damages for personal injuries sustained by plaintiff, Pamela Coakley, on April 20, 2010, when her seat collapsed at the Atlas Park Movie Theater located at 80-[*2]20 Cooper Avenue Glendale, New York. Defendant, THEATER MAINTENANCE and CONSTRUCTION, INC. (T & M) is a contractor in the business of movie seat construction, maintenance, and repair. Said defendant claims that the action should be dismissed against it as it does not own the theater at issue and never did work in this theater or on the seat at issue in this case prior to the date of incident claimed. Ths movant claims it is entitled to summary judgment on the grounds that not having done work on the seats in the theater prior to the date of the accident, it does not owe a duty of care to the plaintiff.

On April 8, 2011, the plaintiff commenced an action for negligence against the owner of the theater, Regal Cinemas Inc, Regal Entertainment Group and Regal Cinemas Atlas Park Stadium 8. On February 14, 2013, plaintiff commenced a separate action against Serengeti Enterprises in Seating Concepts, the company who designed, manufactured sold and installed the seats and the movant herein, T & M, the company who repaired the seats. The two actions were consolidated for trial by order of Justice Greco dated August 14, 2013.

The complaint alleges that T & M serviced and repaired the seat that the plaintiff was sitting in when it collapsed. Plaintiff claims that T & M negligently and carelessly repaired the subject seat and failed to act reasonably as they knew or should have known that the seat in question was in a dangerous and defective condition. It is alleged that defendants failed to disclose knowledge of the dangerous and defective condition of the seat and that the plaintiff's injuries were caused by reason of the negligence and want of reasonable care by the defendants in the wrongful ownership, operation, design, inspection, management, supervision, control, maintenance and/or repair of the seat. The complaint alleges that the defendants had both actual and constructive notice of the defective seat and that the condition lasted for such a period of time that the defendants should have discovered, corrected, or repaired the condition. Issue was joined by service of T & M's verified answer with cross-claims dated April 5, 2013.

In her bill of particulars, the plaintiff alleges that as a result of the accident she sustained a rotator cuff tear of the left shoulder requiring arthroscopic surgery; left knee extruded medial meniscus requiring arthroscopic surgery, disc herniations at C3-4, C7-T1, L3-4, disc bulging at C4-5, C5 - 6, C6-7, and L5-S1, requiring lumbar spinal surgery, and bilateral carpal tunnel syndrome.

Counsel for defendant T & M now moves for an order granting [*3]summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against T & M on the ground that T & M made no repairs to the seat in issue prior to the date of the plaintiff's accident.

In support of the motion, defendant's counsel, Gregory S. Katz, Esq., submits his own affirmation as well as a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; and copies of the transcripts of the examinations before trial of plaintiff, Pamela Coakley and defendant, Regal Cinemas by Alex Sprolling; and an affidavit from Tom Till, owner and manager of T & M and copies of invoices from T & M to Regal Atlas Mall Theatre showing that they repaired and replaced seats at the theater on June 4, 2010 and June 15, 2010 which was subsequent to the accident.

In her examination before trial, taken on June 19, 2012 , plaintiff, Pamela Coakley, age 55, testified that she works with disabled individuals as an employee of Lifespire. She stated that on April 20, 2010 she went to the Atlas movie theater on Glendale Avenue with a disabled client to see the movie Bounty Hunter. She sat in the middle of the theater. She pushed her seat down and sat down. After being seated for 30 minutes, the bottom of the seat collapsed and she fell to the floor. She fell on top on the seat bottom. Prior to the accident she did not feel anything wrong with the seat. She stayed seated on the floor for fifteen to twenty minutes. Her client picked her up and took her to the ladies room. She then told a manager what happened and filled out an accident report. The manager called an ambulance and the medical personnel examined her and then took her and the client to a bus stop. She did not go to the emergency room because they would not take her client with them. She took her client home by bus and then took a bus home. She stated that when the seat collapsed she felt pain in the left side of her body from her neck to her toes. She subsequently sought medical treatment for injuries to her neck, leg, back, left wrist and left shoulder.

Alex Sprolling an Associate Manager for Regal Entertainment Group testified at an examination before trial on September 11, 2012. His job included daily inspections, checking on cashiers, sending out reports to corporate officials, floor operations including working with ushers, making sure theaters and restrooms were cleaned properly and doing general maintenance for the theater. His daily inspections included the entire building at Atlas from the projection booth to the auditoriums, making sure the seats were in good condition, the floors were good, the carpets weren't snipped or cut. He also inspected the restrooms [*4]and the outdoor areas. He stated that he does not recall being present at the theater on the date of the plaintiff's accident but he stated that a manger would have completed an inspection that morning. He stated that the following day a general manager told him that a lady fell inside auditorium six. The following day he observed the broken seat. He stated that the seat was in a diagonal position with one side leaning to the left. He stated that it looked like it had loosened. He said he saw a bolt on the floor. He stated that the bolt was smaller than the usual bolts that are used to repair the chairs. He stated that it looked like a bolt on the side of the chair had broken on the chair and that part of the bolt was still in th chair. He stated that the chairs are usually fixed in house unless they cant fix it and then they call in a local vendor. He stated that on occasion he has repaired chairs by screwing in bolts with a socket wrench. He stated that the outside vendor is DMG Home Services. He stated that he contacted Home Services personally with regard to repairing the chair in question. He identified an incident report filled out by Christine Louis, an assistant manager which stated that a seat collapsed causing an injury to the plaintiff.

Tom Till, the owner and manager of T & M in an affidavit dated November 1, 2013, states that T & M never performed any work on any of the chairs or seats in the theaters whatsoever within the Atlas Park Movie Theater prior to June, 2010. Any work they performed at the theater prior to June 2010 was limited to the tile maintenance work in the kitchen and lobby. Therefore, he claims there is no possibility that T & M performed any work on the seat that collapsed in April 2010. He submits copies of invoices for work T & M performed on the sets in the theater, but they are both from June 2010 several months after the incident in question. He states that he personally reviewed all of T & M's records, invoices and work sheets and submits that T & M never did work in the theater where the incident occurred or on the seat that was the subject of the accident.

Movant contends that the action must be dismissed against T & M because there is no proof in the record that T & M was involved in any seat repairs at Atlas park prior to the plaintiff's accident. Counsel asserts that there was no testimony by the theater manager or documents provided by the plaintiff that would demonstrate that T & M had any connection with the theater or the seat in question. In fact, counsel asserts that the manager testified that he contacted DMG Home Service for purposes of repairing the seat. Thus, T & M asserts that it had no duty to the plaintiff in this matter and without any evidence that T & M was in any way involved in the maintenance or repair of the seat in question summary judgment dismissing the [*5]plaintiffs action against it is warranted.

Regal Cinemas states that it has no objection to T & M s motion, but states that T & M has mischaracterized the EBT testimony of Mr. Sprolling that the theater personnel were capable of performing the type of maintenance that was required to repair the problem. In addition, they state that the shearing off of a bolt would be a defect with the bolt itself or the installation of the seats.

Defendant Seating Concepts, the entity that installed the seats opposes the motion on the grounds that Mr. Tills' statement that his company had a business relationship with the theater prior to the date of the accident is a sufficient basis to deny the motion as premature. Counsel asserts that Seating Concepts should have the opportunity to conduct a deposition of the movant based on the fact that the movant was an outside vendor that admittedly performed repairs at the theater, to assess T & M's relationship with the theater in the four year period prior to the accident and their knowledge of any repairs performed in the theaters or on the seats in that period (citing Nicholson v Bader, 83 AD3d 802 [2d Dept. 2011] Gardner v Cason, Inc., 82 AD3d 802 [2d Dept. 2011]).

Plaintiff's counsel also opposes the motion on the grounds that it is premature as defendant T & M has not yet been deposed. Counsel asserts that T & M admitted they performed tile work in the kitchen ad lobby prior to the accident and therefore, whether T & M made any prior inspections of the theater prior to the accident is a factual issue.

Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition, and defendant's reply thereto, this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff Kallem v Mandracchia, 111 AD3d 893[2d Dept. 2013] Safa v Bay Ridge Auto, 84 AD3d 1344 [2d dept. 2011]). Thus, where a defendant submits unrefuted evidence that it did not do work in [*6]an area involved in the accident and could not have caused or created the condition complained of, summary judgment should be granted (see Iannuzzi v Town of Wallkill, 54 AD3d 812 [2d Dept. 2008] D'Andrea v City of New York, 21 AD3d 926 [2d Dept. 2005] Hudson Meridian Constr. Group, LLC v Kingdom Assoc., Inc., 33 Misc 3d 1205 [Sup Ct. Kings Co. 2011]).

Here, the movant, T & M, established, prima facie, that it was not retained by the theater to repair any theater seats at the Atlas Park Cinema prior to the plaintiff's accident. Although the movant stated that T & M performed work in the theater lobby and kitchen prior to plaintiff's action, it established that it did not owe a duty of care to the injured plaintiff because it had no contact with the theater or broken seat and established that it has not done any work in the premises where the plaintiff fell and therefore their negligence could not have created or exacerbated the dangerous condition or have been a proximate cause of its collapse. The only evidence shown by the plaintiff or codefendants was that the defendant repaired certain seats in the theater in June 2010, three months after the plaintiff's accident.

In opposition, the plaintiff and co-defendants failed to raise a triable issue of fact. Further, "A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Bailey v New York City Tr. Auth., 270 AD2d 156 [2000] see also Suero-Sosa v Cardona, 112 AD3d 706 [2d Dept. 2013] Cueva v 373 Wythe Realty, Inc., 111 AD3d 876 [2d Dept. 2013] Sehgal v www.nyairportsbus.com, Inc., 100 AD3d 860 [2d Dept. 2012]). Here, there is no showing that discovery would provide a basis for plaintiff's claims against T & M. The submission of an attorney's affirmation stating, essentially, that the motion is premature because discovery may yield evidence implicating the movant is speculative and an insufficient basis for denying the motion (see Martinez v Kreychmar, 84 AD3d 1037 [2d Dept. 2011]).

Accordingly, as the moving defendant met its initial burden of establishing that he owed no duty to the plaintiff and as the plaintiff and co-defendants have failed to raise a material question of fact as to the liability of T & M for the accident in question, and based upon the foregoing, it is hereby,

ORDERED, that the motion by defendant, T & M for an order granting summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it is granted and the Clerk of Court is authorized to enter judgment accordingly. [*7]

Dated: April 14, 2014

Long Island City, NY

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ROBERT J. MCDONALD, J.S.C