Opinion
June 17, 1991
Appeal from the Supreme Court, Nassau County (Lockman, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, the complaint in Action Number 1 and the third-party complaint in Action Number 2 are dismissed insofar as they are asserted against the Town of Oyster Bay, all cross claims against it are dismissed, and Action Number 1 against the remaining defendants is severed.
In order to make out a prima facie case of negligence, a plaintiff must first establish the existence of a duty owed (see, Solomon v City of New York, 66 N.Y.2d 1026, 1027; Akins v Glen Falls City School Dist., 53 N.Y.2d 325, 333). Highway Law § 327 provides: "The town board of any town * * * may * * * provide for lighting dangerous portions of any road or highway * * *. The board may * * * at any time discontinue the lighting of any road". Thus, the Town is under no duty to provide lighting on public highways (see, Bauer v Town of Hempstead, 143 A.D.2d 793; Dodd v Warren, 132 Misc.2d 541).
In the absence of any duty to provide lighting, and in view of the Town's authority to discontinue, at any time, any lights which the Town, at its discretion, chose to install, there can be no liability for failure to maintain such lighting once installed, for a failure amounts to nothing more than the "withholding [of] a benefit" (Moch Co. v Rensselaer Water Co., 247 N.Y. 160, 167). Bracken, J.P., Eiber, Harwood and Balletta, JJ., concur.