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

Karen HILL-THOMAS, et al., Respondents, v. METROPOLITAN TRANSPORTATION AUTHORITY, etc., Appellant.

Decided: December 24, 2001

GABRIEL M. KRAUSMAN, J.P., DANIEL F. LUCIANO, NANCY E. SMITH, THOMAS A. ADAMS and A. GAIL PRUDENTI, JJ. Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellant. Riconda & Garnett, Valley Stream, N.Y. (John Riconda of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Martin, J.), entered March 7, 2001, which denied its motion for summary judgment dismissing the complaint, and granted the plaintiffs' cross motion to direct it to produce a witness for an examination before trial.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the complaint is dismissed.

The injured plaintiff allegedly was injured when she slipped and fell on ice on the front steps of the defendant's bus as she was exiting the bus.   The injured plaintiff testified that she did not see the ice when she boarded the bus, or when she was exiting.   She also testified that it was snowing at the time of the accident, and the defendant submitted evidence that there was ongoing precipitation and freezing temperatures both the day before, and at the time of, the injured plaintiff's accident.

 The defendant neither created nor had actual or constructive notice of the ice condition which caused the injured plaintiff's fall.   With respect to constructive notice, there is no evidence that the condition existed for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy it (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774).   In addition, 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 ending of the precipitation to remedy the condition (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).   Since it is undisputed that precipitation was still falling at the time of the injured plaintiff's fall, the defendant cannot be held liable (see, Pacheco v. Fifteen Twenty Seven Assocs., 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).   Thus, the defendant was entitled to summary judgment dismissing the complaint.

In light of our determination, we need not reach the defendant's remaining contention.

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