Wade Clark Mulcahy LLP

In the movie, Field of Dreams, players made their way onto a baseball diamond by walking out of a cornfield.
In Ruffino v. New York City Transit Authority and Sterling Mets, L.P., plaintiff tripped and fell over an uneven piece of wood while walking on a boardwalk that spanned over a Long Island Railroad train station and fed into a New York City Transit Authority number 7 subway station, on her way to Shea Stadium, now the former home of the New York Mets. Sterling Mets, L.P., moved to dismiss plaintiff's complaint, pursuant CPLR §3211(a) (1) and (7), since it did not own, occupy, control or make special use of the boardwalk. In denying Sterling's motion, the trial court essentially found a triable issue as to special use since it determined that the defendant failed to establish that it did not have a duty to maintain the boardwalk in a safe condition even if it did not own, occupy or control the boardwalk.
After restating the standard by which CPLR §3211(a) (1) and (7) motions are to be decided, the Appellate Division, Second Department, found that Sterling’s evidence in support of its motion established that the subject boardwalk is a public thoroughfare. Agreeing with the defendant’s rationale, the Court determined that the mere use of boardwalk by Sterling’s customers is not a special benefit, giving rise to a special use.
Thus, while they may come if you build it, be sure they do so using public thoroughfares.
<a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_08114.htm">http://www.nycourts.gov/reporter/3dseries/2008/2008_08114.htm</a>