| Ruffino v New York City Tr. Auth. |
| 2008 NY Slip Op 08114 [55 AD3d 817] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Victoria Ruffino, Respondent, v New York City TransitAuthority, Respondent, et al., Defendants, and Sterling Mets, L.P.,Appellant. |
—[*1] Philip J. Sporn, Bronx, N.Y. (Robert J. DiGianni, Jr., of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Sterling Mets, L.P., appealsfrom an order of the Supreme Court, Queens County (Lane, J.), entered April 2, 2007, which deniedits motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint and all cross claims insofaras asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant SterlingMets, L.P., pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint and all cross claims insofaras asserted against it is granted.
The plaintiff commenced the instant action against Sterling Mets, L.P. (hereinafter Sterling), amongothers, to recover damages for personal injuries allegedly sustained by her when she tripped and fellover an uneven piece of wood while walking on a boardwalk between a Long Island Rail Road trainstation and a New York City Transit Authority subway station on her way to Shea Stadium. Sterlingmoved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint and all cross claims insofar asasserted against it, contending, inter alia, that it did not own, occupy, control, or make special use of theboardwalk. The plaintiff opposed the motion, contending, among other things, that Sterling did, in fact,make special use of [*2]the boardwalk and that it was obligated toprovide her with a safe means of ingress to and egress from Shea Stadium. The Supreme Court deniedSterling's motion to dismiss, finding, in effect, that Sterling failed to establish that it did not have a dutyto maintain the boardwalk in a safe condition even if it did not own, occupy, or control the boardwalk."In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a) (7),the sole criterion is whether the pleading states a cause of action, and if from its four corners factualallegations are discerned which taken together manifest any cause of action cognizable at law a motionfor dismissal will fail. The court must accept the facts alleged in the complaint to be true and determineonly whether the facts alleged fit within any cognizable legal theory. However, bare legalconclusions are not entitled to the benefit of the presumption of truth and are not accorded everyfavorable inference. When the moving party offers evidentiary material, the court is required todetermine whether the proponent of the pleading has a cause of action, not whether [he or] she hasstated one. Likewise, to succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), thedocumentary evidence which forms the basis of the defense must be such that it resolves all factualissues as a matter of law, and conclusively disposes of the plaintiff's claim" (Morris v Morris,306 AD2d 449, 451 [2003] [emphasis added; citations and internal quotation marks omitted]).Applying the foregoing standards to the instant case, Sterling's motion to dismiss the plaintiff's complaintand all cross claims insofar as asserted against it should have been granted.
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 . . . Wherenone is present, a party cannot be held liable for injuries caused by the dangerous or defective conditionof the property" (Noia v Maselli, 45AD3d 746, 746 [2007], quoting Minott v City of New York, 230 AD2d 719, 720[1996] [internal quotation marks omitted]; see Balsam v Delma Eng'g Corp., 139 AD2d 292,298 [1988]). "The principle of special use . . . imposes an obligation on the abuttinglandowner, where he puts part of a public way to a special use for his own benefit and the part used issubject to his control, to maintain the part so used in a reasonably safe condition to avoid injury toothers" (Noia v Maselli, 45 AD3d at 746, quoting Minott v City of New York, 230AD2d at 720 [internal quotation marks omitted]).
Here, Sterling submitted evidentiary material in support of its motion to dismiss demonstrating thatthe boardwalk is a public thoroughfare. As correctly observed by Sterling, "[t]he use by [Sterling's]customer[s] of [a] public [boardwalk] is not a special benefit giving rise to a special use" (Minott vCity of New York, 230 AD2d at 720 [internal quotation marks omitted]; see Lauer v Great S.Bay Seafood Co., 299 AD2d 325, 327 [2002]; Schreiber v Goldlein Realty Corp., 251AD2d 315, 316 [1998]; Tortora v Pearl Foods, 200 AD2d 471, 472 [1994]). While theplaintiff maintains that Sterling derived a special benefit from the boardwalk since the boardwalkallegedly was constructed specifically to connect Shea Stadium to the nearby Long Island Rail Roadtrain station and New York City Transit Authority subway station, the plaintiff offered no evidentiarysupport for that conclusory allegation.
There also is no merit to the plaintiff's alternative contention that Sterling had a duty to maintain theboardwalk in a safe condition because the boardwalk provided a means of ingress to and egress fromShea Stadium, since, again, the evidentiary material submitted by Sterling and left unrefuted by theplaintiff [*3]established that Sterling did not own, occupy, or control theboardwalk (see Haymon v Pettit, 9NY3d 324 [2007]; cf. Gallagher v St. Raymond's R. C. Church, 21 NY2d 554 [1968]).
The plaintiff's remaining contention is without merit. Santucci, J.P., Dillon, Dickerson andChambers, JJ., concur.