x999-1" type="majority">

OPINION OF THE COURT

ClPARICK, J.

According to plaintiffs, on December 3, 2001, plaintiff Estelle Gilson attended a performance at the Metropolitan Opera. She sat in the aisle seat in the same row where Donald Taitt (who suffers from Parkinson’s disease and walked unsteadily) and his wife were seated. During the 20-minute intermission, plaintiff left her seat, and returned prior to the second act. The Taitts also left their seats during the intermission, but returned unescorted after the houselights had dimmed and the second act had begun. As the Taitts reached their row, plaintiff rose from her seat and moved down into the stepped aisle to allow the Taitts to pass. Donald Taitt then lost his balance and fell onto plaintiff, causing her to fall down four steps into the balcony railing and injure herself.

Plaintiffs commenced this action alleging that the injuries were caused by the negligence of defendant in the ownership, operation, management, supervision, maintenance and control of its premises. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), or in the alternative for summary judgment pursuant to CPLR 3212, arguing that it did not breach any duty owed to plaintiff.* Without commenting on the motion to dismiss, Supreme Court denied defendant’s motion for summary judgment holding that issues of fact precluded summary judgment. A divided Appellate Division reversed, concluding that Metropolitan Opera did not breach any recognized duty owed to plaintiff (15 AD3d 55 [1st Dept 2005]). Plaintiffs appeal as of right on the basis of the two-Justice dissent, and we now affirm.

In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff. As we observed only last month in Matter of New York City Asbestos Litig. (5 NY3d 486, 493 [2005]), we make this determination “by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, *577disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.” We noted our reluctance to extend the duty of care such that a defendant may become liable for failure to control the conduct of others, imposing such duty only where “the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm; and that the specter of limitless liability is not present” (id. at 494 [internal quotation marks omitted]).

Here, plaintiffs argue that in exercising its duty of care to its patrons, defendant had an affirmative duty to escort Taitt to his seat because of his obvious infirmity. Defendant counters that plaintiffs’ proposed duty would place undue burden on theater owners beyond the limits of the duty to maintain their premises in reasonably safe condition. We agree with defendant.

Adopting plaintiffs’ proposed duty would significantly enlarge the duty of theater owners to their patrons. Defendant cannot be “an insurer of the safety of [its patrons, and its] duty is only to exercise reasonable care for their protection” (Prosser and Keeton, Torts § 61, at 425 [5th ed]). Moreover, defendant’s relationship both to plaintiffs and Taitt did not put it in the best position to protect from the risk of harm posed by Taitt’s infirmity (see Alfaro v Wal-Mart Stores, Inc., 210 F3d 111 [2d Cir 2000]).

Additionally, plaintiffs argue and the dissent concludes that defendant’s “Performance Staff Rules and Guidelines” provide some independent evidence of negligence. The internal policy upon which plaintiffs rely provided that “[t]icket holders should be escorted to their seats with the aid of flashlights when the House Lights are low, and particularly requested to watch their step.” These internal guidelines go beyond the standard of ordinary care and cannot serve as a basis for imposing liability. As we stated in Sherman v Robinson (80 NY2d 483, 489 n 3 [1992]), “[violation of a company’s internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence.”

Accordingly, the order of the Appellate Division should be affirmed, with costs.

The complaint also named Lincoln Center for the Performing Arts and Donald Taitt as defendants. Supreme Court dismissed the action against Lincoln Center; defendant Taitt did not appear.

Citation profile

How this case has been treated — in progress