In Weiskopf v. City of New York (5 AD3d 202, 773 N.Y.S.2d 389 [1st Dept 2004]), the plaintiff tripped and fell upon a defective portion of a public sidewalk adjacent to an entry railing of a subway station located at the corner of Prince Street and Broadway in Manhattan.
New York City Transit Authority (NYCTA) moved for summary judgment on the ground that it owed no duty to plaintiff because the accident occurred on a public sidewalk.
In opposition, the plaintiff offered an affidavit from a construction expert, who opined that the sidewalk defect "was the result of the manner in which the metal subway entry substructure was embedded into the subject sidewalk." (Id. at 202.)
The Appellate Division, First Department found "that the installation of the subway entrance Substructure constituted a special use by NYCTA." (Id. at 203.)