The opinion
McGuire, J., dissents
in a memorandum as follows: I respectfully dissent. The majority correctly states the holding in Gilson v Metropolitan Opera ( 5 NY3d 574 [2005]), but errs in concluding that Gilson requires reversal. To the contrary, the holding in Gilson does not control this appeal.
As the majority recognizes, landowners and tenants operating places of public assembly such as movie theaters, owe a duty “to provide members of the public with reasonably safe premises, including safe means of ingress and egress” (citations omitted). Plaintiffs position is that this duty is breached when the aisles of a darkened theater are not kept free of tripping hazards. Particularly because the screening plaintiff attended was sold out—thus increasing the risk that a patron might sit in the aisle to remain with his or her companions—and the movie was about three hours long—thus increasing the likelihood that patrons would leave their seats during the screening—plaintiffs position on the question of duty is not the focus of Loews’s appeal.
To be sure, plaintiff could not rely on Loews’s policy of having an employee check the aisles every 15 to 20 minutes to set or define the duty of care owed to her by Loews. This internal guideline apparently goes “beyond the standard of ordinary care,” and thus “cannot serve as a basis for imposing liability” (Gilson, 5 NY3d at 577 ). Plaintiff, however, may rely on this internal guideline for a different reason—because it provides strong support for something else she must prove in addition to a breach of the duty of care. That is, that Loews had notice of the particular hazardous condition—the young boy sitting in the aisle of the darkened theater—that caused her injury. More specifically, and regardless of whether plaintiff could show that Loews had constructive notice of this hazardous condition, the internal guideline along with other record facts support the inference that Loews had actual notice.
*328 That plaintiff properly can rely on this internal policy to establish Loews’s actual notice without doing violence to the holding in Gilson can be seen by considering different internal policies. Suppose, for example, that Loews’s policy was to have an employee check the aisles only once a day, at 6:45 p.m., and at 6:46 p.m. a patron tripped over a young child who had been sitting in the aisle for some five minutes. Surely the patron could rely on the policy in an effort to establish notice of the dangerous condition. The holding in Gilson would be manifestly irrelevant. Alternatively, suppose that Loews’s policy was to have an employee check the aisle every two minutes, and a patron tripped over a young child who had been sitting in the aisle for seven or eight minutes. Although Loews would be entitled at trial to an instruction consistent with Gilson to the effect that the policy did not define its duty of care, there is no reason why the patron could not rely on the policy on the issue of notice.
In other words, the internal policy of Loews, to the extent it was followed in practice, is simply a fact of the case that bears on an empirical or factual question (what Loews knew). It makes no sense to disregard it merely because it could be misused on a normative or legal question (what Loews’s duty of care was). Put differently, whether Loews or any alleged tortfeasor has actual notice of a dangerous condition because of foolish or wise internal policies is a matter about which tort law is and should be indifferent.
The holding in Gilson presents a formidable problem to any effort by plaintiff to establish that Loews had constructive notice of the tripping hazard presented by the young boy. An alleged tortfeasor has constructive notice of a defect if it is “visible and apparent and . . . exist[s] for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986] [citations omitted]). Thus, whether an alleged tortfeasor had constructive notice is not necessarily a purely empirical issue, for its resolution may turn on the normative issue of what the alleged tortfeasor should have known (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd 64 NY2d 670 [1984] [“Constructive notice will generally be found where the defect is visible and apparent, and has been in that condition so long that (the alleged tortfeasor) is presumed to have seen it, or to have been negligent in failing to see it”] [emphasis added and internal quotation marks omitted]).
We need not determine whether plaintiff can demonstrate Loews’s constructive notice consistently with the holding in *329 Gilson . As discussed below, the submissions on the motion for summary judgment were sufficient to support the inference that Loews had actual notice. Nor does it matter that plaintiffs position on this appeal is that a material issue of fact was raised on whether Loews had constructive rather than actual notice. In opposing Loews’s motion for summary judgment, plaintiff expressly argued that Loews had “failed to shoulder [its] initial burden of proof to eliminate all issues of fact as to any lack of actual or constructive notice of the condition that caused [her] to fall” (see Karras v County of Westchester, 272 AD2d 377 [2000]). Although the majority’s analysis of the constructive notice issue is beside the point, a brief discussion of the flaws in that analysis sheds light on the issue of actual notice.
The majority wrongly concludes that the “time line, supplied by plaintiffs own testimony, negates any inference that the boy was present for a sufficient period of time to permit an inference of constructive notice.” Obviously enough, defendant’s last aisle check prior to plaintiffs fall and plaintiffs act of getting out of her seat to go to the bathroom were temporally independent events. Accordingly, if plaintiff was gone for eight minutes and a Loews employee checked the aisles during this screening of the movie every 15 minutes, the odds of actual notice are in plaintiff’s favor as there would be a slightly better than 50 percent chance the employee checked the aisle during that eight-minute period. 1 I recognize that the odds cut against plaintiff if she was gone for seven minutes and a Loews employee checked the aisles during this screening every 20 minutes. The point, however, is that the majority cannot reasonably conclude that plaintiffs own time line “negates ... an inference of constructive notice.”
Happily, this appeal need not turn on niceties of probability theory. Nor should it turn on plaintiffs own testimony. Rather, it should turn on the affidavit of plaintiff’s companion, Ms. Mulzac, which—unless disregarded—unquestionably raised a material issue of fact on actual notice that precludes the granting of Loews’s motion for summary judgment.
In her affidavit, Ms. Mulzac stated that the boy was in the aisle when she went to the bathroom; that she was out of her seat for “approximately 15-20 minutes”; that the boy remained in the aisle when she returned; that plaintiff then went to the bathroom, and “took approximately the same 15-20 minutes to use the facilities, as there was a long wait, and to return”; and *330 that plaintiff then tripped over the same boy. Accordingly, as Ms. Mulzac summarized, “the minimum total time that [the boy] was in the aisle . . . was 30-40 minutes and perhaps longer.” On these facts, the inference that Loews had actual notice is compelling. After all, if Loews complied with its internal policy—and there was no evidence it did not—the Loews employee or employees who patrolled the aisles would have seen the boy in the aisle at least once and perhaps twice. Unquestionably, moreover, actual notice can be inferred by the trier of fact (see Dorsa v National Amusements, 6 AD3d 652, 653 [2004]; Baker v International Paper Co., 226 AD2d 1007, 1008-1009 [1996]). 2
The majority’s disregard of Ms. Mulzac’s affidavit is not defensible. As the majority recognizes, the occasions on which an affidavit or other testimonial evidence can be disregarded on a motion for summary judgment are “rare.” The majority correctly describes those occasions as ones in which the “affidavits or other evidence submitted in opposition to such a motion [for summary judgment] . . . directly contradict the plaintiffs own version of the accident and are plainly tailored to avoid dismissal of the action” (citations omitted). Although Ms. Mulzac’s affidavit differs from plaintiffs deposition testimony, it does not “directly contradict” the key testimony of plaintiff, and it can be seen as “plainly tailored” only with unrelenting and unreasonable cynicism.
In the first place, plaintiff did not specify or warrant in her deposition that she was gone from the theater for only seven or eight minutes. Rather, she expressly testified that she was unsure. Asked how long she was outside before she returned, *331 she answered “I’d say about seven or eight minutes. I’m not sure.” Moreover, plaintiff, who was 73 years old at the time of the accident (and 79 years old when she was deposed), testified that she had broken her arm and was in a lot of pain; she was taken out of the theater on a stretcher and by ambulance to the hospital. For these reasons—and because it is a matter of common experience that some persons are better at estimating time than others—the only reasonable conclusion is that plaintiff may have been mistaken in estimating that she was out of the theater for seven or eight minutes. 3 The majority, however, does more than inexplicably and implicitly conclude that plaintiff was not mistaken. It concludes that Ms. Mulzac’s affidavit about the amount of time is transparently false (“plainly tailored” and “clearly designed to lengthen the time period”).
As noted, furthermore, with respect to the amount of time that elapsed, Ms. Mulzac’s affidavit simply differs from plaintiffs deposition testimony. The one does not “directly contradict” the other. For this reason alone, the majority’s reliance on each of the three cases it cites (Gloth v Brusco Equities, 1 AD3d 294 [2003]; Rodriguez v New York City Hous. Auth., 304 AD2d 468 [2003]; Phillips v Bronx Lebanon Hosp., 268 AD2d 318 [2000]) is misplaced. And in Rodriguez and Phillips , the affidavit or testimony offered to defeat the motion for summary judgment contradicted deposition testimony of the plaintiff on a matter about which it was at least unusual that the plaintiff could be wrong. (In the other case, Gloth , this Court’s opinion does not indicate the nature of the “contradiction]” [ 1 AD3d at 294 ] between the plaintiffs own testimony and his affidavit.) The affidavit in Rodriguez , moreover, was suspect for another reason; it was proffered after the plaintiff had filed a note of issue and made by an alleged witness who had not previously been disclosed ( 304 AD2d at 469 ). By contrast, plaintiff revealed in her deposition (taken almost a year and a half before the date of the affidavit) that she went to the movie with Ms. Mulzac.
True, Ms. Mulzac’s affidavit and plaintiffs deposition contradict each other in two respects. That is, plaintiff testified that *332 the boy was not in the aisle when she got up and there was no line for the bathroom; Ms. Mulzac’s affidavit stated that the boy was in the aisle when she went to and returned from the bathroom, just before plaintiff got up, and that there was a long line for the bathroom. Why plaintiffs version must be correct and Ms. Mulzac’s version must not only be wrong but dishonestly wrong, is something the majority does not and cannot explain. Again, it is a matter of common experience that some inconsistencies between the perceptions and recollections of witnesses are only natural and can be indicative of an absence of collusion.
Because it is not factually defensible, the majority’s position is not legally defensible either (see Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997] [“It is not the court’s function on a motion for summary judgment to assess credibility” (citations omitted)]; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968] [“The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned”]). The majority’s error, in short, is titanic.
In sum, plaintiff raised a triable issue of fact regarding the issue of notice with respect to her claim that Loews negligently permitted the boy to sit in the aisle during the showing of the movie. Accordingly, I would affirm the order denying Loews’s motion for summary judgment dismissing the complaint. 4
. That assumes, of course, that the young boy was sitting in the aisle when, or immediately after, plaintiff walked up the aisle on her way to the bathroom.
. In Dorsa , the plaintiffs decedent sued the operator of a movie theater, alleging she had fallen after slipping on water the theater negligently permitted to accumulate near the entrance to a restroom. Maintenance records of the theater were destroyed after it received notice of plaintiffs claim. The Second Department directed that an adverse inference charge he given on the issue of actual notice, explaining that the destruction of the records “prevented the plaintiff from obtaining evidence from which a trier of fact may have been able to reasonably infer that the defendant had actual notice of a recurring dangerous condition” ( 6 AD3d at 653 [citations omitted]). On this appeal, plaintiff cites Dorsa and refers this Court to deposition testimony of a manager of the theater. In that testimony, which was before Supreme Court on Loews’s motion for summary judgment, the manager was asked whether records were kept identifying the ushers assigned to inspect the aisles every 15 to 20 minutes. His response was, “We had at the time a placement sheet or layout sheet, but I don’t think we kept it for records after the day [of plaintiffs fall].” Because Loews’s motion for summary judgment was properly denied for other reasons, it is not necessary to determine whether plaintiff preserved for review his contention that the absence of these records provides an additional ground for inferring that Loews had notice of the boy sitting in the aisle.
. Other reasons to conclude plaintiffs estimate of seven or eight minutes was mistakenly short were aptly stated by her attorney in his affirmation in support of plaintiffs cross motion for summary judgment on liability. Addressing opposing counsel, plaintiffs counsel stated as follows: “Please, tell the jury that a 79 year-old woman can get out of her chair in a movie theatre, walk past other patrons in their chairs to reach the aisle, walk up the aisle to the back of the theatre, find the bathroom, use the facilities, wash her hands, leave the bathroom, find the correct theatre in a large multiplex, go back down the aisle, all in 7-8 minutes.”
. Loews also failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiffs separate cause of action based upon Loews’s failure to provide proper illumination in the theater. The only evidence Loews submitted in support of its motion was the deposition testimony of its managing director and that of plaintiff. The managing director’s testimony was essentially that the lighting in the subject theater was sufficient; plaintiffs testimony, by contrast, was essentially that the theater was “pitch black” with insufficient illumination in the theater during the film. The photographs submitted by Loews with its reply papers may not be considered in assessing whether it made a prima facie showing of entitlement to judgment as a matter of law dismissing the inadequate lighting claim (see Rengifo v City of New York, 7 AD3d 773 [2004] [“to meet its prima facie burden, (movant) could not rely on the evidence submitted for the first time in its reply papers”]; Migdol v City of New York, 291 AD2d 201 [2002] [“affidavit of another employee submitted with appellant’s reply papers was properly rejected by the motion court since it sought to remedy . . . basic deficiencies in appellant’s prima facie showing rather than respond to arguments in plaintiffs opposition papers”]). In any event, there was no evidence that the two photographs accurately depicted the lighting in the theater at the time the accident occurred (see Richardson v Rotterdam Sq. Mall, 289 AD2d 679 [2001]).