Mattera v. City of New York

169 A.D.2d 759, 565 N.Y.S.2d 126, 1991 N.Y. App. Div. LEXIS 908

Opinion

In an action to recover damages for wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Posner, J.), dated July 17, 1989, which, after a nonjury trial, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs decedent, an employee of the New York City Transit Authority, was killed by a subway train as he was descending a catwalk ladder 50 feet inside the subway tunnel. The City of New York relinquished possession and control of the subway system when it leased the property to the New York City Transit Authority. Since it cannot be said that the area in which the accident occurred was intended or leased for a "public purpose”, there is no basis to impose liability against the City of New York as a landlord lessor out-of-possession (see, Junkermann v Tilyou Realty Co., 213 NY 404; Hecht v Vanderbilt Assocs., 141 AD2d 696). Thus, the plaintiffs complaint against the City of New York was properly dismissed. Bracken, J. P., Hooper, Sullivan and O’Brien, JJ., concur.