Opinion
2001-05466
Argued May 28, 2002.
September 10, 2002.
In two related actions to recover damages for personal injuries, etc., consolidated for discovery and trial, the defendant in Action No. 2 appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated May 15, 2001, which, upon renewal, denied its motion for summary judgment dismissing the complaint in Action No. 2 and the claim asserted against it by the defendant in Action No. 1.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Michael G. Mehary of counsel), for appellant.
Kressel, Rothlein, Walsh Roth, LLC, Massapequa, N.Y. (David I. Roth of counsel), for plaintiffs-respondents.
Brody, O'Connor O'Connor, Northport, N.Y. (Thomas M. O'Connor and Patricia A. O'Connor), for defendant in Action No. 1-respondent.
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motion is granted, and the complaint in Action No. 2 and the claim asserted against the appellant by the defendant in Action No. 1 are dismissed.
The injured plaintiff was speed-walking at about 6:00 A.M. in the Town of Brookhaven (hereinafter the Town) when she was struck by a car. The plaintiffs commenced an action (Action No. 2) against the Town, alleging that it failed to properly illuminate the roadway. The plaintiffs also commenced an action (Action No. 1) against the car's owner and driver, who subsequently asserted a claim against the Town.
The record shows that the streetlight at the scene of the accident was not working. However, in opposition to the Town's initial motion for summary judgment, the injured plaintiff claimed for the first time that she was walking in the roadway to avoid leaves in her path that the malfunctioning streetlight did not illuminate. Accordingly, this new theory will not bar the granting of summary judgment (see Alvarez v. Lindsay Park Hous. Corp., 175 A.D.2d 225).
In any event, the duty to maintain existing streetlights is limited to those situations in which illumination is necessary to avoid dangerous and potentially dangerous conditions (see Thompson v. City of New York, 78 N.Y.2d 682; Cracas v. Zisko, 204 A.D.2d 382) . The accumulation of scattered leaves on the ground is not the type of dangerous and potentially hazardous condition that imposed a duty to illuminate on the Town (see e.g. Abbott v. County of Nassau, 223 A.D.2d 662).
SANTUCCI, J.P., McGINITY, LUCIANO and ADAMS, JJ., concur.