X AFFIRM A TI 0 N IN

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX --------------------------------------------------------------------X AFFIRM A TI 0 N IN ZARIFE HAXHIAJ, SUPPORT OF SUMMARY JUDGMENT Plaintiff, Index No. 20193/2017E -against- THE CITY OF NEW YORK and NEW YORK CITY TRANSIT AUTHORITY, City File No. 2017-003107 Defendants. ------------------------------------------------------------------------X CHEN KASHER, an attorney admitted to practice in New York and an Assistant Corporation Counsel of the City ofnew York, affirms the truth of the following under the penalties of perjury pursuant to CPLR 21 06, upon information and belief based upon the records maintained in this office: 1. This affirmation is submitted on behalf of defendant THE CITY OF NEW YORK (hereinafter "City"), in support of its motion for an order pursuant to CPLR 3212 granting the City summary judgment as to the Verified Complaint of ZARIFE HAXHIAJ (hereinafter "Plaintiff'') and any and all cross-claims. 2. This is an action to recover damages for personal injuries allegedly sustained by Plaintiff, when she purportedly slipped and fell on the top landing of the "S 1" stairs at the premises known as Morris Park Subway Station, on January 18,2016 1 at approximately 6:30AM, as Plaintiff 1 Although Plaintiff now asserts that the correct date of the incident is January 18, 2016, prior filings including the Notice of Claim refer to the date of the alleged incident (Plaintiff now asserts incorrectly) as January 8, 2016. 1 of 8

walked up from Paulding Avenue to take the Number 5 Green Line subway train. Plaintiffs Notice of Claim is annexed hereto as Exhibit "A." 3. Simply put, as an out-of-possession landowner, the City did not occupy, maintain, or in any way control the Morris Park Subway Station and therefore it cannot be liable for a premises liability case involving an alleged slip and fall on this property. The City does not control the premises, including the Morris Park Subway Station, that constitute the subway system; that is a different entity, the NEW YORK CITY TRANSIT AUTHORITY (hereinafter "Transit Authority"). FACTS 4. Plaintiff appeared and testified at two hearings conducted pursuant to General Municipal Law 50-h on August 23, 2016 (for the Transit Authority) and, separately, on September 1, 2016 (for the City ofnew York). The transcripts of Plaintiffs 50-h testimony are annexed hereto as Exhibit "B." 5. Plaintiff commenced this action on January 9, 2017, by the purchase of an index number and filing a Summons and Verified Complaint with the Bronx County Clerk's Office. The City joined issue by service of their answer on or about March 30, 2017 and the Transit Authority answered as well on or about March 13, 2017. The pleadings collectively (meaning the Summons and Verified Complaint and the Answers of the City and the Transit Authority) are annexed hereto as Exhibit "C." 6. Plaintiff served a Verified Bill of Particulars dated April 20, 2017. Plaintiffs Verified Bill of Particulars is annexed hereto as Exhibit "D." 7. Plaintiff has testified that, on January 18, 2016, she was injured at the Morris Park Subway Station while walking up the stairs to take the number five train. (Ex. B, pp. 37, 39). 2 of 8

She was climbing the stairs up to the station when she slipped on a landing. (Ex. B, pp. 36-37). As plaintiff stepped on the landing, she slipped, and fell on her shoulder. (Ex. B, pp. 41-42). This testimony comports with Plaintiffs Notice of Claim and Verified Bill of Particulars, which also list the top landing of a staircase at the Morris Park Subway Station as the location of Plaintiffs injury. (Ex. A, p. 1; Ex. D, p. 1.) 8. At the time of Plaintiffs accident, the City was an out-of-possession owner who had leased the premises to the Transit Authority. 9. In 1953, the City had entered into a Lease Agreement (hereinafter Lease Agreement) with the transit authority in which it relinquished possession and control of all transit facilities operated by the then Board of Transportation to the transit authority. Pursuant to that Lease Agreement the City was not responsible for the everyday maintenance and repair of the premises. Annexed hereto as Exhibit "E" is the Lease Agreement. Under the terms of the lease, the Lessee was responsible for the everyday maintenance and repair of the premises; therefore, the City is an out of possession landowner and cannot be held responsible for the Plaintiffs injuries. 10. The City requests that this Court take judicial notice of this 1953 Composite Lease Agreement that establishes that the transit authority is responsible for the maintenance, repair and operation of all transit facilities (leased property), material and supplies incidental and necessary to the operation of the transit system. (See Ex. E.) 11. Moreover, David Schloss, Senior Title Examiner of the New York City Law Department, conducted a search for the premises located at the Morris Park A venue Subway Station located at the intersection of Paulding Avenue and the Esplanade in the Bronx, New York. His results found that record title for this subway station on the date of incident was with the City of 3 of 8

New York subject to a Master Lease between the City ofnew York and the New York City Transit Authority. Affidavit of David Schloss, along with a map, is annexed hereto as Exhibit "F". 12. According to the affidavit of Assistant Commissioner for the Finance Information Services Division of the Department of Finance (DOF) of the City of New York, George Mark, the records of the DOF are maintained in its Real Property Assessment Division ("RP AD") database. See affidavit of George Mark that is annexed hereto as Exhibit "G". Mr. Mark affirms that the RPAD database ofthe DOF, the City agency charged with keeping records pertinent to the tax status of property in the City, is used by the DOF in connection with its determination of the tax liability of City property owners. As such, the RP AD database is used in the regular course ofbusiness of the DOF. ARGUMENTS POINT I THE CITY'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE THE CITY'S RELATIONSHIP TO THE SUBJECT PREMISES WAS MERELY THAT OF AN OUT -OF-POSSESION LANDOWNER 13. It is well settled law that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless that entity retained control of the premises or is contractually obligated to repair the unsafe condition. The First Department has held on no fewer than five occasions that the City is an out-of-possession landlord under the 1953 Master Lease between the City ofnew York and the New York City Transit Authority. As such, the City cannot be sued by persons injured by allegedly-dangerous conditions on property leased to the Transit Authority pursuant to that lease. See Santiago v. City of New York, 137 A.D.3d 455 (1st Dep't 2016) (granting City's motion for summary judgment because City established that it was an out-ofpossession landlord that did not have responsibility for the allegedly hazardous condition of the 4 of 8

subway steps); Alladice v. City ofnew York, 111 A.D.3d 477 (1st Dep't 2013); Arteaga v. City of New York, 101 A.D.3d 454 (1st Dep't 2012); Alonzo v. McDonald's Corp., 282 A.D.2d 395, 395 (1st Dep't 2001); McGuire v. City ofnew York, 211 A.D.2d 428 (1st Dep't 1995); Mattera v. City of New York, 169 A.D.2d 759 (2d Dep't 1991). See also Lowe-BruTett v City of New York, 28 AD3d 721, 722, (2d Dep't 2006); Sangiorgio v. Ace Towing & Recovery, 13 A.D.3d 433, 433-44 (2d Dept. 2004); Carvano v. Morgan, 270 A.D.2d 222 (2d Dep't 2000); Vaglas v. Gironda, 266 A.D.2d 282 (2d Dep't 1999); DeJesus v. N.Y. City Health & Hosps. Com., 309 A.D.2d 729 (2d Dep't 2003). 14. In McGuire, a case with nearly identical facts, plaintiff allegedly fell on the staircase of the subway station. The out-of-possession landowner, the City, moved for summary judgment. The lower court granted the motion and the First Department upheld the decision stating: McGuire, 211 at 428. 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. 15. Similar to the facts in McGuire, Plaintiffs accident occurred in a subway station at a location that is necessary to the operation of the station, the stairs. Pursuant to the Lease Agreement, the City has relinquished all possession and control of the stairs to the Transit Authority. 16. Recently in another case involving a slip and fall on subway station stairs, the Honorable Mitchell Danziger, in Aissata Sow v. New Y ark City Transit Authority, et al Index No. 301217/16 (N.Y. Ct. Feb. 27, 2017), ruled that, "Upon a review ofthe papers submitted herein, it is 5 of 8

undisputed that the City, as an out-of-possession landlord, which did not manage, maintain, operate or control the location wherein plaintiff allegedly fell, liability cannot be imposed hereon." A copy of the Sow decision is annexed hereto as Exhibit "H." In Sow, as in the instant case, the plaintiff fell on the stairs at a Subway Station controlled by the Transit Authority; the stairs in Sow were at the 138th Street Subway Station and the stairs herein were at the Morris Park Subway Station, but this is a distinction without a legal difference in two cases otherwise legally alike. 17. Under such circumstances, the City's relationship to the Morris Park Subway Station where Plaintiff allegedly fell was merely that of an out-possession landowner that as a matter of law cannot be exposed to liability. Carvano, 270 A.D.2d 222. Thus, Plaintiff's Verified Complaint and all cross-claims against the City should be dismissed. POINT II THE CITY DID NOT MAINTAIN OR CONTROL THE STAIRS INVOLVED IN THE ALLEGED INCIDENT 18. It is respectfully submitted that the City should be granted summary judgment because, while the City owns the property of the subway station, it was and continues as of present to be leased to, maintained by, and under the control of the Transit Authority, a public benefit corporation. 19. The Transit Authority was created as a public benefit corporation pursuant to its enabling legislation, Titled 9 of the New York Public Authorities Law. New York Authorities Law 1201 (McKinney). See also, N.Y. General Construction Law 66 (McKinney). A fundamental characteristic of a public benefit corporation is autonomy and independence in the areas of both management and tort liability. 47 New York Jurisprudence, Public Authorities, 1 (1966). 20. With respect to the effect of this statutorily decreed autonomy, the New York Courts have consistently held that neither the State of New York nor any of its political subdivisions 6 of 8

are legally responsible or liable for the tortuous conduct of a public benefit corporation. New York Post Corp. v. Moses, 10 N.Y.2d 199 (1961). Indeed, "[t]he very name (public benefit corporation) imparts a distinct connotation of separateness and judicial distinction from the state, its political subdivisions and municipal corporations... " Bell v. Manhattan and Bronx Surface Transit Operating Authority, 364 N.Y.S.2d 274, 275 (Supreme Court Bronx 1974). 21. Clearly, the City and the New York City Transit Authority are entirely independent entities. Each entity has its own powers and purposes as conferred by statute. Each has its own rules of internal operation and management. Each has its own duties arising both from the property under its control and the service or function it performs. Perhaps most important, however, is that each has the power to determine its relationship with the other by contractual provisions not otherwise inconsistent with law. See New York Public Authorities Law 1203(7) and 1207(j)(2). 22. The City should be granted summary judgment because the stairs at the Morris Park Subway Station on which the Plaintiff allegedly slipped were operated and maintained solely by defendant Transit Authority, a public benefit corporation. 23. In light of the foregoing, this action cannot be maintained against the City as the City is not a proper party to this action. The City did not have responsibility for, or control over, the property involved in this incident. This function rests with the Transit Authority. Consequently, the City should be granted summary judgment pursuant to C.P.L.R. 3212 with respect to Plaintiff's Verified Complaint and any and all cross-claims against it, as there are no issues of fact to be tried. 7 of 8

WHEREFORE, it is respectfully requested that the City's motion be granted in its entirety, granting summary judgment in favor of City, dismissing Plaintiffs Verified Complaint against the City and any and all cross-claims, amending the caption accordingly, and for such other and further relief as this Court may deem just and proper. Dated: Bronx, New York June 23, 2017 CHENKASHER Assistant Corporation Counsel 8 of 8