Valladares v. New York City Transit Authority

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about June 11, 1993, which granted defendant’s motion for summary judgment dismissing plaintiff’s complaint, unanimously affirmed, without costs.

Summary judgment was properly granted in light of defendant’s introduction of an easement agreement entered into between it and the owner of the stairway where plaintiff fell, together with affidavits from its own engineer, which indicate that defendant neither owned nor maintained the stairway in question. Plaintiff’s belated reliance upon Fortson v New York City Tr. Auth. (111 AD2d 58), claiming, for the first time on appeal, that the stairway’s sole purpose was for access to and from the subway system, may not be considered (Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276). Concur—Carro, J. P., Rosenberger, Ellerin, Nardelli and Tom, JJ.