Ausderan v. City of New York

• Decision Date: 28 September 1995
• Citation: 631 N.Y.S.2d 512,219 A.D.2d 562
• Parties: Edna AUSDERAN, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Respondent, and New York City Transit Authority, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 512

631 N.Y.S.2d 512

219 A.D.2d 562

Edna AUSDERAN, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Respondent and New York City Transit Authority, Defendant-Appellant.

Supreme Court, Appellant Division First Department.

Sept. 28, 1995.

M. Kaiser, for plaintiff-respondent.

A. Spanier, for defendant-respondent.

A. Isola, for defendant-appellant.

Before ROSENBERGER, J.P., and ASCH, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Salvador Collazo, J.), entered on or about June 21, 1994, which denied defendant New York City Transit Authority's motion for summary judgment, unanimously affirmed, without costs.

A common carrier "is under a duty to provide a prospective passenger with a reasonably safe, direct entrance onto the vehicle, clear of any dangerous obstruction or defect which would impede that entrance" (Blye v. Manhattan and Bronx Surface Transit Operating Authority, 124 A.D.2d 106, 111, 511 N.Y.S.2d 612 affd. 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225). A breach of this duty can depend on whether the carrier did anything to "compel or even suggest" that the passenger walk across a defective path or whether the passenger "chose her dangerous path without the guidance or discretion of the [carrier]" (see, id., at 112-114, 511 N.Y.S.2d 612, explaining MacKenzie v. Union Ry. Co., 82 App.Div. 124, 128, 81 N.Y.S. 748, affd., 178 N.Y. 638, 71 N.E. 1134). Accepting as true plaintiff's assertion that she tripped over a protruding metal signpost base in the sidewalk grating after being told by an employee of defendant to board the bus only in the back, an issue of fact exists whether defendant "suggested" a path that required plaintiff to navigate a dangerously defective condition, and even if it did not, whether plaintiff had the choice of a path that was safe and direct.

Plaintiff's second contention is that the defendant made a special use of the sidewalk where plaintiff tripped and accordingly owed a duty to the public to maintain it in a safe condition (see, D'Ambrosio v. City of New York, 55 N.Y.2d 454, 463, 450 N.Y.S.2d 149, 435 N.E.2d 366). Responsibility for conditions created by a special use is most commonly addressed with respect to abutting property owners, however, special benefit users are not limited to abutting owners. Any entity that installs an object onto the sidewalk or roadway with the permission of the municipality should be deemed a special benefit user (see, ...