Hayden v. Ward

283 A.D.2d 942, 723 N.Y.S.2d 788, 2001 N.Y. App. Div. LEXIS 4523

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint against defendant Town of Ellicottville dismissed. Memorandum: Supreme Court erred in denying the motions of defendant Town of Ellicottville (Town) for summary judgment dismissing the complaints against it. Molly Hayden, the daughter of plaintiffs in appeal No. 1 and the subrogee of plaintiff in appeal No. 2, was injured when she attempted to cross a road at an intersection at night and was struck by a vehicle. Plaintiffs alleged that the Town was negligent in failing to provide adequate lighting at the intersection. A municipality “generally is required to [install street lighting] only in certain situations where it is necessary to keep the street safe, i.e., where there is a defect or some unusual condition rendering the street unsafe to the traveling public” (Thompson v City of New York, 78 NY2d 682, 684, rearg denied 79 NY2d 916; see, Highway Law § 327; see also, Abbott v County of Nassau, 223 AD2d 662). In this case, plaintiffs failed to allege in the complaint that a defect or unusual condition existed at the intersection, nor did they submit evidence of such a defect or unusual condition in opposition to the Town’s motions (see, Cracas v Zisko, 204 AD2d 382, 383-384; cf., Graham v City of Rochester, 184 AD2d 990, 991-992). Plaintiffs’ allegation “that the accident site was dark is insufficient to establish the existence of [a duty to install street lighting] on the Town” (Cracas v Zisko, supra, at 383). (Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.