Opinion
November 3, 2000.
Order, Supreme Court, New York County (Lottie Wilkins, J.), entered May 18, 1999, which denied defendant-appellant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as against New York City Transit Authority. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the claim as against it.
Marc Gertler, for plaintiff-respondent.
Renee L. Cyr, for defendant-appellant.
Before: Tom, J.P., Mazzarelli, Ellerin, Lerner, Andrias, JJ.
Defendant-appellant New York City Transit Authority proffered sufficient evidence that it was merely a common user and did not own, maintain, or control the area in dispute which was a foyer area near the top of a staircase. Summary judgment was warranted since plaintiff failed to demonstrate that the subject area's sole function was to provide access to defendant's subway station (Pena v. NYCTA, 237 A.D.2d 150).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.