The following papers numbered 1 to 14 read on this motion by defendant, SERENGETI ENTERPRISES, INC., for an order pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing plaintiff's complaint and all cross-claims asserted against it:

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 80-20 Cooper Avenue Glendale, New York. The movie theater is owned and operated by defendants Regal Cinemas, Inc., Regal Entertainment Group, and Regal Cinemas Atlas Park Stadium 8 (collectively hereinafter Regal). The movie theater seats were manufactured and/or distributed by defendant Seating Concepts. Defendant Serengeti Enterprises, Inc. (Serengeti) installed the seats. Theater Maintenance and Construction, Inc. aka T & M Theater Construction Inc. (T & M) was the company who repaired the seats.

On April 8, 2011, plaintiff commenced an action for negligence against Regal. On February 14, 2013, plaintiff commenced a separate action against Serengeti, Seating Concepts, and T & M. The two actions were consolidated for trial by Short Form Order dated August 14, 2013 (Greco, J.). By Short Form Order dated April 14, 2014, this Court dismissed plaintiff's complaint as against defendant T & M. Serengeti now moves for summary judgment on the grounds that it as it did not owe plaintiff a duty of care, plaintiff cannot maintain an action under res ipsa loquitor, and it was not on notice of any problems with the seats.

In support of the motion, Serengeti's counsel, Christopher Gee, Esq., submits his own affirmation as well as a copy of the pleadings; a copy of plaintiff's verified bill of particulars; copies of the transcripts of the examinations before trial of plaintiff, Regal by Alex Sprolling, Serengeti by Kenneth McMahan, Seating Concepts by G.K. Mandigo; color copies of photographs of the subject seat; and an affidavit from Kenneth McMahan.

At her examination before trial, taken on June 19, 2012, plaintiff, age 55, testified that she works with disabled individuals as an employee of Lifespire. 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 of 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 [*2]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. 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 and the outdoor areas. He does not recall being present at the theater on the date of plaintiff's incident, but a manger would have completed an inspection that morning. The following day a general manager told him that a lady fell inside auditorium six. The following day he observed the broken seat. The seat was in a diagonal position with one side leaning to the left. It looked like it had loosened. He saw a bolt on the floor. The bolt was smaller than the usual bolts that are used to repair the chairs. 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 the chair. The chairs are usually fixed in house unless they cannot fix it and then they call in a local vendor. On occasion he has repaired chairs by screwing in bolts with a socket wrench. The outside vendor is DMG Home Services. He contacted DMG 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 plaintiff.

Kenneth McMahan, the senior project foreman for Serengeti at the time of the incident, appeared for an examination before trial on April 27, 2015. He testified that Serengeti installs movie theater seats. His job responsibilities included setting up the installation projects, fielding any customer questions or concerns, and overseeing all installation projects. Serengeti installed the seats in the subject movie theater in April 2006. He was not at the subject location during the installation process. Serengeti receives the seats from Seating, the supplier, in three separate boxes. One box contains the components that make up the back of the chairs. The second box contains the [*3]components that make up the seat of the chair. The third box contains the components that make up the chair leg. Serengeti bolts the leg into the floor, installs the back of the chair, and then installs the seat of the chair by placing the hole of the ear or hinge on top of the threaded hole of the bracket and then puts a supplied bolt through these holes vertically to hold them together. Serengeti does not install any part, bolt, or component that goes into or directly connects into the seat. He did not receive any complaints about the chairs installed at the subject movie theater. Mr. McMahan also submits an affidavit dated June 30, 2016. He affirms that he reviewed certain photographs that Mr. Sprolling identified as a portion of the chair that had sheared off. The bolt or rod that Mr. Sprolling referred to was not installed, altered, or modified by Serengeti during the installation of the chairs. Rather, the bolt is a pre-manufactured part not installed, altered, or modified by Serengeti. However, he did testify that some times when he personally installed a seat the bolts have sheared on him.

G.K. Mandigo, the Director of Parts and Service for Seating Concepts, testified at an examination before trial taken on February 3, 2016 that there are no bolts installed into the seats during the manufacturing process. The only bolts that are located near the seat would be those placed through the landing bracket during installation.

Based on the above testimony, Serengeti claims that it has established its prima facie entitlement to summary judgment as Serengeti did not owe a duty of care to plaintiff, did not create the defective or hazardous condition as it did not install any component or piece into the chair itself. Additionally, Serengeti claims that plaintiff's cause of action under the doctrine of res ipsa loquitur fails as the subject seat was not in its exclusive control.

Plaintiff opposes the motion on the grounds that Mr. McMahan was not there when the chairs were installed, and thus, cannot comment on whether all the chairs were installed properly. As such, plaintiff argues that Serengeti failed to establish that there was not a faulty installation which could have caused the seat collapse.

Regal opposes the motion on the grounds that there are issues of fact including whether the "bolt" referenced by Mr. Sprolling, the only person who had an opportunity to take note of what the seat looked like after the seat collapsed, was a pre-manufactured part of the seat.

Seating Concepts partially opposes the motion on the grounds that Serengeti misconstrues Mr. Sprolling's testimony and relies upon Mr. McMahan's speculative affidavit. Seating Concepts also submits an affidavit from Mr. Mandigo dated September 6, 2016. Mr. Mandigo affirms that there are no bolts installed into the seats during the manufacturing process.

Upon review and consideration of the motion, opposition papers, and 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 or her 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]). A party who enters into a contract to render services may be said to have assumed a duty of care and could potentially be liable to third persons: "(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 [2002][internal quotation marks omitted]).

Here, Serengeti was hired by Regal to install the seats. The installation occurred four years prior to the subject incident. Following the installation, Serengeti relinquished all control over the chairs to Regal. Serengeti was never requested to return to the subject movie theater for any continued ongoing maintenance or services by Regal or was Serengeti ever advised of any complaints or problems compelling it to return to the theater to correct any errors in its installation of the chairs. Thus, this Court finds that Serengeti has established, prima facie, that it dud not owe a care of duty to plaintiff. Moreover, it is undisputed that Serengeti did not receive any complaints regarding the installation of the chairs in the subject movie theater. Thus, Serengeti established that it was not on notice of any problems with the subject chairs. As to whether Serengeti created the alleged defective condition, Mr. Sprolling testified [*4]that the bolt came from the side of the chair, and part of the bolt was actually in the chair itself. Thus, the broken piece was coming from within the chair itself, not from a piece that would have been installed by Serengeti.The opposing parties failed to raise a triable issue of fact. No evidence has been put forth to demonstrate that the bolt itself was installed by Serengeti or that Serengeti negligently installed the seat. Moreover, Mr. Sprolling testified that the chairs were inspected daily by Regal. Thus, a non-negligent inspection by Regal would have discovered an installation defect. (See Dawson v National Amusements, Inc., 259 AD2d 329 [1st Dept. 1999]).

Lastly, submission of a case on the theory of res ipsa loquitur is warranted only when the plaintiff demonstrates that "(1) the event is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the event is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event is not due to any voluntary action or contribution on the part of the plaintiff" (Kambat v St. Francis Hosp., 89 NY2d 489 [1997]); Ebanks v New York City Tr. Auth., 70 NY2d 621 [1987]).

Here, it is undisputed that plaintiff failed to demonstrate exclusive control. Mr. Sprolling testified that Regal was in charge of inspection and maintenance, and that Regal occasionally serviced the chairs either themselves or through the use of an outside vendor. Additionally, in the four years following the installation and leading up to plaintiff's incident, thousands of patrons used the subject chair prior to plaintiff. Thus, the evidence does not adequately exclude, inter alia, the chance that the seat had been damaged by one or more of Regal's patrons who used the seat or by Regal's own servicing of the chairs (Raimondi v New York Racing Assoc., 213 AD2d 708 [2d Dept. 1995]; Troisi v Merit Oil Co., 208 AD2d 615 [2d Dept. 1994]).

Accordingly, as the moving defendant met its initial burden of establishing that it owed no duty to plaintiff, and as the opposing parties have failed to raise a material question of fact as to the liability of Serengeti for the subject incident, and based upon the foregoing, it is hereby,

ORDERED, that the motion by defendant, SERENGETI ENTERPRISES, INC., for an order granting summary judgment, and dismissing plaintiff's complaint and all cross-claims asserted against it is granted, and the Clerk of Court is authorized to enter judgment accordingly.