Pantazis v. City of New York ( 1995 )

Order, Supreme Court, New York County (Seymour Schwartz, J.), entered April 21, 1993, which denied, without prejudice to renewal, defendant New York City Transit Authority’s motion for summary judgment dismissing the complaint and all cross-claims against it, unanimously reversed, on the law, without costs, and the complaint against the New York City Transit Authority dismissed.

The Supreme Court erred in denying defendant’s motion for summary judgment since the plaintiff failed to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557). The Transit Authority cannot be held liable for injuries caused by the dangerous or defective condition of the City sidewalk because it does not own, maintain, operate or control the public streets and sidewalks (NY City Charter § 383), and it therefore had no duty to exercise reasonable care with respect to the area five feet from the subway entrance where plaintiff conceded she fell (see, Balsam v Delma Eng’g Corp., 139 AD2d 292, 296-297, lv dismissed in part and denied in part 73 NY2d 783).

In addition, there was no evidence that defendant benefitted from this portion of the sidewalk in a manner different from that of the general populace such to impute liability based upon a theory of "special use” (Tortora v Pearl Foods, 200 AD2d 471, 472). Concur—Murphy, P. J., Rosenberger, Rubin and Williams, JJ.