HAYDEN v. Town of Ellicottville, Defendant-Appellant.  (Appeal No. 1.) (2001)

 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 N.Y.2d 682, 684, 578 N.Y.S.2d 507, 585 N.E.2d 819, rearg. denied 79 N.Y.2d 916, 581 N.Y.S.2d 668, 590 N.E.2d 253;  see, Highway Law § 327;  see also, Abbott v. County of Nassau, 223 A.D.2d 662, 637 N.Y.S.2d 216).   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 A.D.2d 382, 383-384, 612 N.Y.S.2d 55;  cf., Graham v. City of Rochester, 184 A.D.2d 990, 991-992, 584 N.Y.S.2d 236).   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, 612 N.Y.S.2d 55).

Order unanimously reversed on the law without costs, motion granted and complaint against defendant Town of Ellicottville dismissed.