Opinion
October 27, 1994
Appeal from the Supreme Court, New York County (Robert Lippmann, J.).
Summary judgment was properly granted in light of defendant's introduction of an easement agreement entered into between it and the owner of the stairway where plaintiff fell, together with affidavits from its own engineer, which indicate that defendant neither owned nor maintained the stairway in question. Plaintiff's belated reliance upon Fortson v. New York City Tr. Auth. ( 111 A.D.2d 58), claiming, for the first time on appeal, that the stairway's sole purpose was for access to and from the subway system, may not be considered (Recovery Consultants v Shih-Hsieh, 141 A.D.2d 272, 276).
Concur — Carro, J.P., Rosenberger, Ellerin, Nardelli and Tom, JJ.