Opinion
1013 CA 21-01454
02-10-2023
NICHOLAS T., as Parent and Natural Guardian of R.D., Nicholas T., as Administrator of the Estate of Jennifer D., Deceased, and Mark Bailey, Plaintiffs-Appellants, v. TOWN OF TONAWANDA, Town of Amherst, Defendants-Respondents, et al., Defendants.
FEROLETO LAW, BUFFALO (JILL WNEK OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. WALSH, ROBERTS & GRACE, BUFFALO (JOSEPH H. EMMINGER, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF TONAWANDA. HURWITZ FINE P.C., BUFFALO (STEPHEN M. SORRELS OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF AMHERST.
FEROLETO LAW, BUFFALO (JILL WNEK OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
WALSH, ROBERTS & GRACE, BUFFALO (JOSEPH H. EMMINGER, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF TONAWANDA.
HURWITZ FINE P.C., BUFFALO (STEPHEN M. SORRELS OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF AMHERST.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Jennifer D. (decedent) was killed when she was struck by a vehicle while crossing Niagara Falls Boulevard, which comprises the boundary between defendants Town of Tonawanda and Town of Amherst (collectively, Towns). Insofar as relevant here, plaintiffs, one of whom is decedent's son and the other of whom is the administrator of decedent's estate and the parent and natural guardian of decedent's infant daughter, commenced this negligence action against the Towns, among others, alleging that they negligently permitted a dangerous condition to exist on Niagara Falls Boulevard. Each Town moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint against it on the ground that the road is a state highway and thus the Towns had no duty of care regarding the road. Plaintiffs appeal from an order granting the motions, and we affirm.
It is well settled that "[t]he threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?" ( Hamilton v. Beretta U.S.A. Corp. , 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] ; see Rosario v. Monroe Mech. Servs., Inc. , 158 A.D.3d 1155, 1156, 750 N.E.2d 1055 [4th Dept. 2018], lv dismissed 31 N.Y.3d 1067, 77 N.Y.S.3d 336, 101 N.E.3d 977 [2018] ). Furthermore, whether a defendant owes a duty of care to the plaintiff is an issue of law for the court to determine (see Davis v. South Nassau Communities Hosp. , 26 N.Y.3d 563, 572, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015] ; Pingtella v. Jones , 305 A.D.2d 38, 40, 758 N.Y.S.2d 717 [4th Dept. 2003], lv dismissed 100 N.Y.2d 640, 769 N.Y.S.2d 204, 801 N.E.2d 425 [2003], rearg denied 1 N.Y.3d 594, 776 N.Y.S.2d 224, 808 N.E.2d 360 [2004] ). Contrary to plaintiffs’ contention, "[a] municipality has no duty to maintain in a reasonably safe condition a road it does not own or control unless it affirmatively undertakes such a duty" ( Ernest v. Red Cr. Cent. School Dist. , 93 N.Y.2d 664, 675, 695 N.Y.S.2d 531, 717 N.E.2d 690 [1999], rearg denied 93 N.Y.2d 1042, 697 N.Y.S.2d 571, 719 N.E.2d 932 [1999] ; see Ostrowski v. Baldi , 61 A.D.3d 1403, 1404, 877 N.Y.S.2d 546 [4th Dept. 2009], lv denied 13 N.Y.3d 701, 2009 WL 2621811 [2009] ; Alcalay v. Town of N. Hempstead , 262 A.D.2d 258, 259, 690 N.Y.S.2d 739 [2d Dept. 1999], lv dismissed 94 N.Y.2d 796, 700 N.Y.S.2d 428, 722 N.E.2d 508 [1999] ) and, here, the record establishes that the Towns undertook no duty to maintain this state highway.
We reject plaintiffs’ further contention that Highway Law § 327 imposed a duty upon the Towns to adequately light the road. Highway Law § 327 states that a town may provide lighting for a state highway and may, in its discretion, discontinue lighting at any time (see Mastro v. Maiorino , 174 A.D.2d 654, 655, 571 N.Y.S.2d 515 [2d Dept. 1991] ). Consequently, we conclude that "there is no duty on the part of the [Towns] to light the [road] so as to support a cause of action sounding in negligence based on the lack of lighting" ( Bauer v. Town of Hempstead , 143 A.D.2d 793, 794, 533 N.Y.S.2d 342 [2d Dept. 1988] ; see Mastro , 174 A.D.2d at 655, 571 N.Y.S.2d 515 ; see also Hayden v. Ward , 283 A.D.2d 942, 942, 723 N.Y.S.2d 788 [4th Dept. 2001] ).