CERON v. New York City Transit Authority, Defendant-Appellant. (2000)

Supreme Court, Appellate Division, First Department, New York.

Rossy CERON, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant, New York City Transit Authority, Defendant-Appellant.

Decided: November 02, 2000

TOM, J.P., MAZZARELLI, ELLERIN, LERNER and ANDRIAS, JJ.

Marc Gertler, for Plaintiff-Respondent. Renee L. Cyr, for Defendant-Appellant.

Order, Supreme Court, New York County (Lottie Wilkins, J.), entered May 18, 1999, which denied defendant-appellant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as against New York City Transit Authority. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the claim as against it.

Defendant-appellant New York City Transit Authority proffered sufficient evidence that it was merely a common user and did not own, maintain, or control the area in dispute which was a foyer area near the top of a staircase. Summary judgment was warranted since plaintiff failed to demonstrate that the subject area's sole function was to provide access to defendant's subway station (Pena v. NYCTA, 237 A.D.2d 150, 655 N.Y.S.2d 357).

MEMORANDUM DECISION.

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