Opinion
5930–17
04-17-2018
Vincent W. OWENS and Gwendolyn Owens, Plaintiffs, v. Michelle L. DEPRETE, The Town of Colonie, The County of Albany, Niagara Mohawk Power Corp. d/b/a "National Grid" and National Grid USA d/b/a "National Grid", Defendants.
Patrick J. Higgins, of Counsel, LaFave, Wein & Frament, PLLC, 2400 Western Avenue, Guilderland, New York, 12084, Attorneys for Plaintiffs David M. Cost, of Counsel, Barclay Damon, LLP, 80 State Street, Albany, New York, 12207–2543, Attorneys for Defendants Niagara Mohawk Power Corp. d/b/a "National Grid" and National Grid USA d/b/a "National Grid." No Other Appearances on This Motion
Patrick J. Higgins, of Counsel, LaFave, Wein & Frament, PLLC, 2400 Western Avenue, Guilderland, New York, 12084, Attorneys for Plaintiffs
David M. Cost, of Counsel, Barclay Damon, LLP, 80 State Street, Albany, New York, 12207–2543, Attorneys for Defendants Niagara Mohawk Power Corp. d/b/a "National Grid" and National Grid USA d/b/a "National Grid."
No Other Appearances on This Motion
Denise A. Hartman, J.
In this action to recover for injuries allegedly sustained by plaintiff Vincent W. Owens in a motor vehicle accident with Michelle L. Deprete, defendants Niagara Mohawk Power Corp. d/b/a "National Grid" and National Grid USA d/b/a "National Grid" (collectively, "National Grid") move to dismiss the complaint for failure to state a cause of action against them or, in the alternative, for summary judgment. Because plaintiffs have not identified a duty of care owed to them by National Grid, the motion to dismiss for failure to state a cause of action is granted.
The action has already been discontinued by stipulation as to defendant Albany County.
Background
According to the complaint, on June 14, 2016, at approximately 9:35 p.m., plaintiff, driving a motorcycle, was struck by a car driven by defendant Michelle L. Deprete on Troy–Schenectady Road, a public roadway in the Town of Colonie, County of Albany. The complaint asserts six causes of action. As relevant to the motion here under consideration, the fourth and fifth causes of action allege that National Grid owned, controlled, maintained, and operated "street lighting" on Troy–Schenectady Road in Colonie and that "[i]t was reasonably foreseeable that if the street lighting was not maintained with reasonable care, that said street lighting would pose an unreasonable risk of danger to members of the public...." The complaint alleges that the street lighting was not maintained with reasonable care and that National Grid's negligent maintenance was a substantial contributing factor to the injuries suffered by plaintiff.
The sixth cause of action is a derivative loss of services claim.
National Grid moves to dismiss for failure to state a cause of action, arguing that it did not owe a duty of care to plaintiffs. National Grid argues in the alternative that it is entitled to summary judgment based on evidence that the light was in working order at the time of plaintiff's accident. Plaintiffs allege that the owner of the light pole had a non-delegable duty to maintain the lighting for the benefit of the general public. Plaintiffs also argue that National Grid has not tendered evidence in admissible form and that issues of fact exist regarding National Grid's ownership of the light pole and whether it provided adequate lighting at the site of the accident.
Analysis
In considering National Grid's motion to dismiss, the Court must construe the complaint liberally, accept its allegations as true, and give plaintiff the benefit of every inference ( Cortlandt St. Recovery Corp. v. Bonderman , ––– NY3d ––––, 2018 NY Slip Op 01149 [2018] Vestal v. Pontillo , 158 AD3d 1036, 1038 [3d Dept 2018] ). Nevertheless, "bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss" ( Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, LLC , 155 AD3d 1218, 1219, 1220 [3d Dept 2017] ).
"A municipality has a duty to maintain its streets in a reasonably safe condition" ( Thompson v. New York , 78 NY2d 682, 684 [1991] ). At the same time, "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 , 78 NY2d at 684 ). Likewise, a municipality owes no duty to maintain existing streetlights absent a defect or unusual, unsafe condition of the street ( Silvestri v. Vil. of Bronxville , 106 AD3d 901, 902 [2d Dept 2013], lv denied 21 NY3d 865 [2013] ; see Hayden v. City of NY , 26 AD3d 262 [1st Dept 2006] ; Abbott v. County of Nassau , 223 AD2d 662, 662 [2d Dept 1996] ). Neither the darkness of a roadway nor the fact that a light was broken establishes a defect or unusual, unsafe condition (see Gagnon v. City of Saratoga Springs , 51 AD3d 1096 [3d Dept 2008], lv denied 11 NY3d 706 [2008] ; Cracas v. Zisko , 204 AD2d 382 [2d Dept 1994] ; Michetti v. New York , 184 AD2d 263 [1st Dept 1992] ; Poppke v. Portugese Am. Club of Mineola , 22 Misc 3d 1135 [A] [Sup Ct, Nassau County 2009] ).
In order to make out a prima facie case of negligence based on insufficient lighting, the plaintiff must demonstrate "that defendant had a duty to light the area where she was injured" (see Gagnon , 51 AD3d at 1098 ). Where the allegation is that the light was not functioning properly, the plaintiff must further show that the malfunction of the light "created a dangerous condition" ( Thompson v. New York , 78 NY2d at 685 ). "[A]n independent contractor responsible for municipal light repairs owes no duty of care to the general public" ( Vergara v. Tides Constr. Corp. , 280 AD2d 665, 666 [2d Dept 2001] ). No duty can be found where the defendant "lacked sufficient control ... to be in a position to prevent the [alleged] negligence" ( Vogel v. W. Mtn. Corp. , 97 AD2d 46 [3d Dept 1983] ; see Kelso v. Wall St. Funding , 94 AD3d 1186, 1189 [3d Dept 2012] ).
Here, the complaint does not allege facts that, if true, would have imposed a duty on National Grid to maintain the lighting over Troy–Schenectady Road for the benefit of plaintiffs. The duty to maintain Troy–Schenectady Road in a reasonably safe condition rested on the municipality, not National Grid (see Thompson , 78 NY2d at 684 ). Assuming National Grid had been contracted by the responsible municipality to maintain the light, the benefit of such contract would extend only to the municipality, not the general public (see Vergara , 280 AD2d at 666 ). In other words, regardless of whether National Grid owned, operated, or maintained the street lighting on Troy–Schenectady Road, it did not have a duty to keep the road illuminated for the benefit of the general public.
Plaintiffs argue that National Grid, as owners of the street light that regularly illuminated the public roadway, held a non-delegable duty to the general public, citing the principle that "even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care" (compare Parvi v. Kingston , 41 NY2d 553, 559 [1977] ). National Grid's ownership, operation, or maintenance of a light fixture that illuminates a public roadway does not constitute evidence that it voluntarily undertook a duty to the general public to remedy a defect or unusual, unsafe condition in a road over which it had no control (see Thompson , 78 NY2d at 685 ; Gagnon , 51 AD3d at 1098 ; see Kelso v. Wall St. Funding , 94 AD3d 1186, 1189 ; Filiberto v. Herk's Tavern, Inc. , 37 AD3d 1007, 1008–1009 [3d Dept 2007].
National Grid's request to strike plaintiffs' sur-reply is denied. Finally, having found that National Grid is entitled to dismissal of the complaint against it, the Court declines to address that part of plaintiff's motion that requests summary judgment. Accordingly, it is
Ordered that so much of the motion of Niagara Mohawk Power Corp. d/b/a "National Grid" and National Grid USA d/b/a "National Grid as is to dismiss pursuant to CPLR 3211 is granted;
Ordered that the fourth and fifth causes of action in the complaint are dismissed;
Ordered that the complaint is dismissed against Niagara Mohawk Power Corp. d/b/a "National Grid" and National Grid USA d/b/a "National Grid."
This constitutes the decision and order of the Court. The original decision and order is being transmitted to plaintiff's counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this decision and order does not constitute entry or filing under CPLR 2220 and counsel is not relieved from the applicable provisions of that rule respecting filing and service.