Whether a transit authority is liable for a defect on a stairway that is not owned by the transit authority, but is used exclusively to access a subway station.

Yes. Regardless of whether the transit authority owns the stairway, it has a duty to either keep the stairway safe or warn passengers of potential dangers, so long as the stairway is used "solely" or "constantly" to access the subway station.

Plaintiff was descending down a stairway in a New York City subway station when a metal strip at the edge of a step caused her to fall forward and injure her wrist and knee. Plaintiff sued the New York City Transit Authority and the Metropolitan Transit Authority, citing poor maintenance of the stairway. Defendants motioned for summary judgment, asserting that they had no duty to maintain the stairway because they do not own it. The Supreme Court granted Defendants' motion, finding that Defendants presented sufficient evidence that they did not own the stairway and thus had no duty to maintain it. The Appellate Division affirmed. The Court of Appeals reversed.

As a general rule, where a stairway functions as a "sole" or "constant" means of access to a subway station, the transit authority has a duty to either keep that stairway safe or warn passengers of any impending dangers, even where the transit authority does not own the stairway. See Schlessinger v. Manhattan Ry. Co., 49 Misc 504 (N.Y. App. Div. 1906); Haberlin v. New York City Transit Auth., 228 A.D.2d 383, 385 (N.Y. App. Div. 1996). Conversely, the rule does not apply where a stairway provides access to other destinations in addition to a subway station, such as businesses or rental spaces. See O'Hara v. New York City Transit Auth., 248 A.D.2d 138, 140 (N.Y. App. Div. 1998). The Court held that if passengers used the stairway exclusively to access Defendants' trains, then Defendants had a duty to keep the stairway safe. The Court found that there remained a genuine dispute of material fact regarding whether the stairway was exclusively used to access Defendants' subway station, and thus summary judgment was improper.ÚÚÚ

Defendants also asserted for the first time on appeal that the established Schlessinger rule should be abandoned in favor of a new rule where common carriers are not liable for defects on others' property unless a carrier has "a right of control over such property." However, the Court refused to review Defendants' argument, holding that a new question, even one that implicates an issue of pure law, cannot be reviewed for the first time on appeal unless "it could not have been avoided by factual showings or legal countersteps had it been raised below." See Telaro v. Telaro, 25 N.Y.2d 433, 439 (1969). Accordingly, the Court reversed and denied Defendants' motion for summary judgment.