Calero v. New York City Transit Authority

168 A.D.2d 659, 563 N.Y.S.2d 109, 1990 N.Y. App. Div. LEXIS 15983

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1990
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Garry, J.), dated June 9, 1989, which granted the defendant’s renewed motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs’ contentions, their claim that the defendant the New York City Transit Authority was negligent in failing to lock a subway platform gate, as it had previously done, thus allowing the injured plaintiff’s assailant to enter a secluded area, where she was assaulted, did not involve a proprietary function of the defendant (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175; see also, Bonner v City of New York, 73 NY2d 930; Miller v State of New York, 62 NY2d 506; Farber v New York City Tr. Auth., 143 AD2d 112). Thus, absent a special relationship between the plaintiffs and the defendant, the instant action against the defendant was barred (see, Bonner v City of New York, supra; Miller v State of New York, supra). Bracken, J. P., Hooper, Miller and Ritter, JJ., concur.