In Newisky v. United Artists Kaufman Astoria 14 Regal Cinemas, 2018 NY Slip Op 06880 (App. Div. 2d Dept. Oct. 17, 2018), the court held that defendant should have been granted summary judgment dismissing the complaint.
The court described the accident as follows;
The plaintiff and his wife arrived at the theater and began to look for seats approximately 15 minutes before the movie was scheduled to start. The plaintiff selected a seat and did not notice anything wrong with it prior to sitting down. The plaintiff alleged that he was injured when, as he was about to sit down, he applied some pressure to the seat cushion with his hand, at which point the cushion dislodged from the frame, causing him to fall into the seat.
So why does plaintiff lose? One word: notice. Specifically, “[t]he defendants demonstrated, prima facie, that they neither created nor had actual or constructive notice of the defective condition of the subject seat,” and plaintiff “failed to raise a triable issue of fact as to whether the defendants created or had notice of the particular condition.”
Nor could plaintiff rely on the doctrine of “res ipsa loquitur,” since “the evidence presented did not adequately exclude the chance that the seat had been damaged by someone other than the defendants.”