We dissent. The order on appeal should be affirmed.
The facts set forth above present material factual issues precluding the award of summary judgment. These issues include but are not limited to whether defendant’s house staff should have permitted the patron who fell upon plaintiff to enter the auditorium and return to his seat after the hall had been darkened and the performance had begun; having done so, whether an usher should have accompanied the patron; whether this constituted negligence under all the relevant circumstances, including any evident infirmity of the late-returning patron; and whether plaintiffs injury was a foreseeable consequence of any such negligence. Our colleagues in the majority have set forth many of the issues; however, they then proceeded to resolve them. For example, in arguing that defendant Metropolitan Opera is not liable as a matter of law, the majority makes specific reference to the inapplicability of the Performance Staff Rules and Guidelines (Guidelines) and the inadequacy of the evidence on the alleged violations of the City Building Code. The substance of each is described by the majority and need not be repeated here.
At the outset, it is noted that notwithstanding that a specific purpose of the Guidelines was to assure the safety of patrons, neither the IAS Justice nor do we specifically rely on either the Guidelines or the alleged Code violations in determining that there are unresolved questions of fact. In any event, whether the Guidelines will be offered, albeit with a limiting instruction (see Clarke v New York City Tr. Auth., 174 AD2d 268, 276 [1992]), and what weight the alleged Code violations and the plaintiffs’ expert report will be afforded, are not questions that can be resolved at this point.
*61Similarly, the conclusion by the majority that there is no obligation for an usher to escort a patron to his seat (without even addressing whether the usher should have initially placed himself/herself in that position) places undue emphasis on just one point a jury may consider in determining negligence and proximate cause. Under the unique facts of this case, whether an usher should have escorted the patron, once the decision to let him in the theater was made, is a question of fact, not law.
The facts are that a patron who visibly had trouble walking was allowed by defendant’s employees to enter a darkened theater and attempt to walk to his seat in a, at best, dimly lit, stepped area, with the resulting injury to an innocent plaintiff. This raises triable factual issues which preclude the award of summary judgment.
Sullivan and Nardelli, JJ., concur with Saxe, J.E; Ellerin and Sweeny, JJ., dissent in a separate opinion by Sweeny, J.
Order, Supreme Court, Bronx County, entered on or about April 21, 2004, reversed, on the law, without costs, defendants’ motion insofar as it sought summary judgment dismissing the complaint against defendant Metropolitan Opera granted, and the complaint against that defendant dismissed. The Clerk is directed to enter judgment accordingly.