Opinion
January 10, 1995
Appeal from the Supreme Court, New York County (Seymour Schwartz, J.).
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 N.Y.2d 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 A.D.2d 292, 296-297, lv dismissed in part and denied in part 73 N.Y.2d 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 A.D.2d 471, 472).
Concur — Murphy, P.J., Rosenberger, Rubin and Williams, JJ.