McGuire v. City of New York

211 A.D.2d 428, 621 N.Y.S.2d 314

Opinion

Supreme Court, New York County (Leland DeGrasse, J.), entered on or about May 7, 1993, which denied defendant-appellant New York City Transit Authority’s motion to vacate plaintiff’s note of issue and granted defendant-respondent City of New York’s motion for summary judgment dismissing the complaint against it, unanimously modified, on the law and on the facts, and in the exercise of discretion, to grant the Transit Authority’s motion to strike the note of issue, and otherwise affirmed, without costs.

The City was properly dismissed from the action in view of plaintiffs positions that he slipped on either the street level step or second top step of a stairway leading down to a subway station, since, in either case, the accident occurred at a location incidental to or necessary for the operation of the subway station, and therefore on "lease property” within the meaning of the 1953 lease in which the City relinquished possession and control of all of its transit facilities to the Transit Authority (see, Mattera v City of New York, 169 AD2d 759).

In light of the fact that discovery has not been completed, we grant the Transit Authority’s motion to strike the note of issue. Concur—Murphy, P. J., Sullivan, Rosenberger and Asch, JJ.