EVANS v. MTA NEW YORK CITY TRANSIT AUTHORITY (2007)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Kings County (Solomon, J.), dated November 15, 2005, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, and (2) so much of an order of the same court dated July 19, 2006, as, upon reargument, adhered to the prior determination.

ORDERED that the appeal from the order dated November 15, 2005, is dismissed, as that order was superseded by the order dated July 19, 2006, made upon reargument;  and it is further,

ORDERED that the order dated July 19, 2006, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

In November 2004 the plaintiff filed a complaint alleging that she was injured while she was a passenger on the defendants' bus, and that her injuries were caused by a wet, slippery, and icy condition on the bus.   In June 2005 the defendants moved, inter alia, for summary judgment dismissing the complaint.

 The defendants established their prima facie entitlement to judgment as a matter of law and the plaintiff, in opposition, failed to raise a triable issue of fact (see Petty v. Harran Transp. Co., 300 A.D.2d 290, 750 N.Y.S.2d 773;  Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 750 N.Y.S.2d 91;   Hill-Thomas v. Metropolitan Trans. Auth., 289 A.D.2d 447, 448, 735 N.Y.S.2d 569;  Brown v. City of New York, 250 A.D.2d 638, 672 N.Y.S.2d 419).   In particular, we note that “before a party can be held liable for an alleged hazardous condition created by the accumulation of snow or ice, the party must have had a reasonably sufficient time from the cessation of the precipitation to remedy the condition” (Hill-Thomas v. Metropolitan Trans. Auth., supra at 448, 735 N.Y.S.2d 569;  see Taylor v. New York City Tr. Auth., 266 A.D.2d 384, 698 N.Y.S.2d 52;  Pohl v. Sternberg, 259 A.D.2d 742, 687 N.Y.S.2d 431;  Mangieri v. Prime Hospitality Corp., 251 A.D.2d 632, 676 N.Y.S.2d 207).   Here, the record reveals that snow was still falling at the time of the plaintiff's fall.   Under such circumstances, the defendants were entitled to summary judgment dismissing the complaint (see Pacheco v. Fifteen Twenty Seven Assoc., 275 A.D.2d 282, 712 N.Y.S.2d 535;  Hussein v. New York City Tr. Auth., 266 A.D.2d 146, 699 N.Y.S.2d 27).