RUFFINO v. (and a third-party action). (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Flug, J.), entered July 18, 2007, as granted that branch of the motion of the defendant New York City Transit Authority which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced the instant action against the New York City Transit Authority (hereinafter the NYCTA), among others, seeking to recover damages for personal injuries she allegedly sustained when she tripped and fell over an uneven piece of wood while walking on a boardwalk between a Long Island Rail Road train station and a NYCTA subway station on her way to Shea Stadium.   The NYCTA moved for summary judgment dismissing the complaint and any cross claims insofar as asserted against it, contending, inter alia, that it did not own, occupy, control, or make special use of the boardwalk.   The plaintiff opposed the motion, contending, among other things, that the NYCTA did, in fact, make special use of the boardwalk and that the NYCTA, as a common carrier, was obligated to maintain the boardwalk, which leads to and from its subway station, in a reasonably safe condition.   The Supreme Court granted the NYCTA's motion for summary judgment, finding, inter alia, that the NYCTA did not own, occupy, or control the boardwalk and also did not create the allegedly dangerous condition on the boardwalk.

 As a general rule, “[l]iability for a dangerous or defective condition on property is ․ predicated upon ownership, occupancy, control or special use of the property ․ Where none is present, [generally] a party cannot be held liable for injuries caused by the dangerous or defective condition of the property” (Noia v. Maselli, 45 A.D.3d 746, 746, 846 N.Y.S.2d 326, quoting Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879 [internal quotation marks omitted];  see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298, 532 N.Y.S.2d 105).  “The principle of special use ․ imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others” (Noia v. Maselli, 45 A.D.3d at 746, 846 N.Y.S.2d 326, quoting Minott v. City of New York, 230 A.D.2d at 720, 645 N.Y.S.2d 879 [internal quotation marks omitted] ).

 Here, the evidence submitted by the NYCTA in support of its summary judgment motion demonstrated, prima facie, that the boardwalk where the plaintiff fell is owned by another entity and is, in any event, a public thoroughfare (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   As correctly observed by the NYCTA, “[t]he use by [the NYCTA's] customer[s] of [a] public [boardwalk] is not a special benefit giving rise to a special use” (Minott v. City of New York, 230 A.D.2d at 720, 645 N.Y.S.2d 879 [internal quotation marks omitted];  see Lauer v. Great S. Bay Seafood Co., 299 A.D.2d 325, 327, 750 N.Y.S.2d 305;  Schreiber v. Goldlein Realty Corp., 251 A.D.2d 315, 316, 673 N.Y.S.2d 723;  Tortora v. Pearl Foods, 200 A.D.2d 471, 472, 606 N.Y.S.2d 235).   The plaintiff's contention that the NYCTA derived a special benefit from the boardwalk because the boardwalk allegedly was constructed specifically to connect the NYCTA's Shea Stadium subway stop to Shea Stadium was purely speculative and insufficient to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 There also is no merit to the plaintiff's alternative contention the NYCTA had a duty to maintain the boardwalk in a safe condition, or to warn against unforeseen dangers on the boardwalk, pursuant to Bingham v. New York City Tr. Auth., 8 N.Y.3d 176, 832 N.Y.S.2d 125, 864 N.E.2d 49.   In Bingham, the Court of Appeals concluded “that the Schlessinger rule [that a common carrier maintain a safe means of ingress and egress for the use of its passengers, even if the area is owned and maintained by another, so long as the area is constantly and notoriously used by passengers as a means of approach] should be retained, at least as applied to areas that serve primarily for ingress and egress to a subway or other similar station that is served by a single carrier ” (Bingham v. New York City Tr. Auth., 8 N.Y.3d at 181, 832 N.Y.S.2d 125, 864 N.E.2d 49, citing Schlessinger v. Manhattan Ry. Co., 49 Misc. 504, 505, 98 N.Y.S. 840 [emphasis added] ).   Unlike the stairway at issue in Bingham, the subject boardwalk, which is located between a Long Island Rail Road station and a NYCTA subway station, is more akin to a common area in a multi-carrier facility, to which the duty of care as set forth by the Court of Appeals in Bingham has not been extended (see Bingham v. New York City Tr. Auth., 8 N.Y.3d at 181, 832 N.Y.S.2d 125, 864 N.E.2d 49, citing Raffile v. Tower Air, 264 A.D.2d 721, 695 N.Y.S.2d 116).

The plaintiff's remaining contention is without merit.