The following papers numbered 1 to 12 were read on this motion by the defendants for an order, pursuant to CPLR 3212, granting summary judgment in favor of the defendants and dismissing the plaintiff's complaint:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 6

Affirmation in Opposition-Affidavits-Exhibits..........7 - 10

Reply Affirmation.....................................11 - 12

_________________________________________________________________

This is an action for damages for personal injuries sustained by plaintiff, INDROWTIE MEKHURI, when she allegedly slipped and fell on snow and water which had accumulated on the steps of a New York City bus in Queens County, New York.

The accident occurred on March 2, 2009, at approximately [*2]9:50 a.m., when the plaintiff, who was a passenger on the Q10 bus, allegedly slipped on a wet/slippery substance, fell down the steps and slipped out of the bus as she was getting off at her stop at Jamaica Avenue and 185th Street in Queens County, New York. As a result of the fall, the plaintiff sustained, inter alia, posterior disc bulges with impingement at C4-5 and C5-6, and cervical and lumbar spine derangement.

The plaintiff commenced an action for negligence against the defendants by filing a summons and complaint on February 23, 2010. The gravamen of the complaint is that the defendants were negligent in allowing the steps of the bus to remain in an unsafe, dangerous and hazardous condition. The complaint alleges that the defendants had actual and constructive notice of the dangerous and hazardous condition as it existed for a sufficient length of time prior to the accident and that the defendants, in the exercise of due care, should have recognized and remedied the condition.

Issue was joined by the service of defendants' answer dated April 2, 2010. Defendant served an amended answer with cross-claims dated May 17, 2010. The plaintiff served a verified Bill of Particulars dated November 22, 2010 in which it is claimed that the incident occurred through the negligence of the defendants in failing to manage, operate and properly maintain the bus in a safe and diligent manner.

In support of the motion, Gail S. Karan, Esq., counsel for defendants submits her own affidavit dated December 7, 2010; a copy of the pleadings; a copy of the plaintiff's verified Bill of Particulars; a copy of the transcript of the plaintiff's statutory examination pursuant to General Municipal Law § 50-h taken by defendants on May 12, 2009; and copies of climatological records for the date in question.

In her 50-h statutory hearing, the plaintiff, age 41, a home health aide, testified that on the date of the accident, March 2, 2009, she was taking the Q10 bus to get to a patient's house. She stated that when she got on the bus at 140th Street it was snowing and there was a lot of snow on the stairs but that she entered the bus without slipping. She testified that she told the driver that someone is going to fall because the passengers were bringing snow onto the bus. The plaintiff testified that it had been snowing since the night before and there was an accumulation of snow on the streets. After approximately fifteen minutes, the plaintiff reached her stop at 185th Street and she observed that there was snow, puddles and packed ice on the stairs. After taking one step down she slipped on the top step, slid down three additional steps and slid right out of the bus door and landed on the ground. She stated that the driver did not put the stairs down. The plaintiff went to her patient's house but after a few hours she was in pain and took a taxi to her [*3]doctor's office. Once at the doctor's office, the doctor called for an ambulance to take her to Jamaica Hospital.

The climatological data submitted by counsel indicates that snow began falling on March 1, 2009 and by March 2, 2009, approximately 5 inches of snow had fallen in the area where the plaintiff's accident occurred.

Defendants' counsel submits an affirmation in support of the motion in which she states that the plaintiff conceded that there was an ongoing snow storm at the time she slipped on the bus stairway with snow being tracked into the bus from passengers. Counsel states that the stairs were in a slippery condition because of the wet weather conditions and snow being tracked in by passengers. Counsel contends that the mere fact that the floor of the bus was wet during an ongoing storm did not establish that there was a dangerous condition (citing Spooner v New York City Transit Authority, 298 AD2d 575 [2d Dept. 2002]). Counsel further contends 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, it would have been unreasonable to expect the defendants to constantly clean the floor of the bus during an ongoing snowstorm (citing Mckenzie v County of Westchester, 38 AD3d 855 [2d Dept. 2007]; Hussein v New York City TR. Auth., 266 AD2d 146 [1st Dept. 1999]).

Therefore, counsel contends that the defendants have established their prima case entitlement to summary judgment as a matter of law based upon consistent rulings of the Appellate Division that the mere fact that the floor of a bus is wet during an ongoing storm does not establish that there was a dangerous condition on the bus (citing Spooner v New York City Transit Authority, supra).

In opposition to the motion, plaintiff's counsel, Scott L. McCann, Esq. contends that the plaintiff's hearing testimony raises triable issues of fact as to whether defendants breached their duty in allowing a dangerous condition to remain on its bus. Counsel states that plaintiff's testimony indicates that she informed the bus driver that the steps were in a dangerous condition and, notwithstanding her warning, the bus driver failed to activate the kneel feature to decrease the height of the steps relative to the ground. Counsel states that although the defendants have established that there was snow on the ground and there was a snowstorm in progress at the time of the accident, there is a question of fact as to whether the defendants had notice of the dangerous condition of the steps and whether the driver took reasonable actions to mitigate the dangerous condition. Counsel contends that the testimony of the plaintiff indicates that the bus driver did not undertake any action to remove or otherwise mitigate the dangerous accumulation of snow from the steps of the bus. Further, the plaintiff testified that [*4]the driver's failure to activate the "kneel" feature of the bus contributed to her slip and fall. Counsel contends that an issue of fact remains as to whether decreasing the height of the bus steps, making them closer to the ground, is a reasonable precaution for the defendant driver to have taken under the circumstances. In further opposition to the motion, the plaintiff submits an affidavit dated March 4, 2011 which states in part:

"Just prior to my exit from the bus, the driver failed to decrease the height of the bus relative to the ground to make it easier to step off the bus, even though this bus was equipped to do so. On that date, as I was exiting the bus at the 185th Street stop, I was caused to slip and fall down the steps and onto the ground because of ice and water accumulation on the steps inside of the bus and the failure of the bus driver to lower the bus."

In reply, defendants' counsel argues that actual or constructive notice of the condition is not implicated under the facts of this case because the fact that there was an ongoing snow storm relieves the defendant of any liability in that the snow was being tracked into the bus by the passengers. Further, counsel argues that the plaintiff's argument that the driver's failure to kneel the bus should not be considered because this theory of negligence was not pleaded in the complaint and was raised for the first time in opposition to the motion for summary judgment. Counsel contends that neither the notice of claim nor the complaint contends that the driver was negligent in failing to activate the kneeling device on the bus. The notice of claim and the complaint both allege that the plaintiff slipped and fell down the steps of the bus onto the sidewalk due to a wet slippery substance on the steps. The plaintiff's Bill of Particulars states that the "defendant failed to manage, operate and properly maintain the aforesaid bus in a safe and diligent manner." Counsel contends that the plaintiff should, therefore, be precluded from raising the issue of kneeling in opposition to the defendants' motion for summary judgment (citing Wilson v New York City Transit Authority, 66 AD3d 602 (1st Dept. 2009]). Moreover, counsel contends that there is no duty to kneel the bus (citing Carlino v Triboro Coach Corp 22 AD3d 624 [2d Dept. 2005], and that the plaintiff did not submit evidence that this bus was capable of kneeling or that there was a duty or requirement that the driver activate the kneeling mechanism under the circumstances. Further, counsel claims that as the plaintiff states that she slipped on the top step of the bus, the failure of the driver to kneel the bus was not a proximate cause of her accident.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material [*5]issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

Upon review of the defendants' motion, plaintiff's opposition and the defendants' reply thereto, this court finds as follows:

Here, it is undisputed that it was snowing at the time of the incident and that it had been snowing for several hours prior to the time of the incident. The plaintiff contends that despite the ongoing storm, there are issues of fact regarding whether defendants had notice of the dangerous condition of the steps and whether defendant took reasonable steps to mitigate the dangerous condition. However, this Court finds that as a matter of law defendants did not breach any duty owed to the plaintiff since there was an ongoing snowstorm at the time of the accident, and it was unreasonable to expect the bus driver to constantly clean the steps of the bus (see Pena v. New York City Tr. Auth., 48 AD3d 309 [1st Dept. 2008]; [it is unreasonable to require defendant to keep the floors of its station dry during the course of the inclement weather]; Rayford v. County of Westchester,59 AD3d 508 2d Dept. 2009][same, water in aisle and steps of bus]; McKenzie v. County of Westchester, 38 AD3d 855 [2d Dept. 2007] [same, wet and slushy steps on a bus]). The fact that the steps of the bus were wet or slippery during the ongoing snowstorm does not establish that there was a dangerous condition (see Spooner v. New York City Transit Authority, 298 AD2d 575 [2d Dept. 2002][puddle of water near rear steps on a bus during rainstorm]; Hussein v. New York City Transit Auth., 266 AD2d 146 [2d Dept. 1999][it is unreasonable to require the Transit Authority to keep the floors of subway cars clean and dry during ongoing storms, when the subway cars are continuously filled with wet commuters]; Tracy v Metropolitan Tr. Auth., 2010 NY Slip Op 30882U [Sup. Ct Nassau Co. 2010]). The Appellate Division has consistently held that under comparable weather conditions, there is no duty on the part of the bus operator to constantly clean the floor (see Robins v. Metropolitan Transit Authority, 58 AD3d 711 [2d Dept. 2009] [slip and fall on wet step during a rainstorm]). In addition, in the absence of duty, the issue of actual or constructive notice is not implicated.

Therefore, as the plaintiff slipped on the steps of the bus during an ongoing snowstorm, this court finds that the defendants have demonstrated, prima facie, that they did not breach a duty owed to the plaintiff under the circumstances and, as such, defendants are entitled to judgment as a matter of law.

In opposition, the plaintiff has failed to raise a question of fact. The plaintiff raised for the first time in her [*6]opposition to the motion that the defendants were negligent for failing to use the kneeling mechanism to lower the stairs of the bus closer to the ground. However, this theory was not pleaded in the complaint, set forth in the bill of particulars, or articulated in the notice of claim. As the issue of the bus kneeling was raised by the plaintiff for the first time as a theory of negligence in opposition to the motion for summary judgment, she is precluded from raising it in the opposition papers (see Mezger v Wyndham Homes, Inc., 81 AD3d 795 [2d Dept. 2011][a court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint]; Wilson v. New York City Tr. Auth. 66 AD3d 602 [2d Dept. 2009]; Medina v. Sears, Roebuck & Co., 41 AD3d 798 [2d Dept. 2007]).

In any event, the plaintiff failed to demonstrate that the bus was capable of kneeling, that it was feasible to kneel the bus under the circumstances, that she requested the driver to kneel the bus, or whether there was a policy or standard in effect which required the driver to kneel the bus [see Santiago v. New York City Transit Auth,69 AD3d 530 1st Dept. 2010]; Carlino v Triboro Coach Corp., 22 AD3d 624 [2d Dept. 2005]). Moreover, the plaintiff testified that she slipped on the top step of the bus as she was exiting. Thus, although kneeling the bus may have had a impact on the degree of her injury, the plaintiff contends that she fell as a result of the slippery conditions on the steps and thus the distance between the final bus step and the street could not have been a proximate cause of the plaintiff's accident (see Capers v New York City Tr. Auth., 35 AD3d 162 [1st Dept. 2006]).

Accordingly, as the plaintiff, in opposition to the defendants' prima facie showing of entitlement to judgment has failed to raise a triable issue of fact, and based on the foregoing, it is hereby

ORDERED that the defendants' motion for summary judgment is granted and the plaintiff's complaint is dismissed.

Dated: June 10, 2011

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.