McKENZIE v. COUNTY OF WESTCHESTER

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Supreme Court, Appellate Division, Second Department, New York.

Helena McKENZIE, appellant, v. COUNTY OF WESTCHESTER, et al., respondents.

Decided: March 27, 2007

HOWARD MILLER, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and MARK C. DILLON, JJ. Anthony J. Scarcella & Associates, P.C., White Plains, N.Y. (M. Sean Duffy of counsel), for appellant. Nesci Keane Piekarski Keogh & Corrigan, White Plains, N.Y. (Jason M. Bernheimer of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered March 10, 2006, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

While attempting to disembark a bus owned and operated by the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus.   It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus.   After the plaintiff commenced this action to recover damages for personal injuries allegedly sustained by her in the accident, the defendants moved for summary judgment, claiming, inter alia, that the accident was not the result of any breach of a duty on their part.

The defendants established their prima facie entitlement to summary judgment (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298).   The evidence submitted by the defendants, including the plaintiff's deposition testimony and that of the bus driver, established that the defendants did not breach a duty owed to the plaintiff since, under the weather conditions which existed at the time of the accident, “[i]t would be unreasonable to expect the defendant[s] to constantly clean the floor[s] of [their] buses” (Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 575-576, 750 N.Y.S.2d 91;  see Hussein v. New York City Tr. Auth., 266 A.D.2d 146, 146-147, 699 N.Y.S.2d 27).   The evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Indig v. Finkelstein, 23 N.Y.2d 728, 729, 296 N.Y.S.2d 370, 244 N.E.2d 61).

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