SUPREME COURT: COUNTY OF CHAUTAUQUA
MARION MISTRETTA, AS PARENT
AND COURT APPOINTED LEGAL
GUARDIAN OF AARON MISTRETTA;
AND AARON MISTRETTA
vs Index No. H-8421
WILLIAM R. HOLLMAN, KADA
BENNACER, INDIVIDUALLY AND
D/B/A DINAPOLI'S PIZZERIA;
AND NIAGARA MOHAWK POWER
SEEGERT, & ESTOFF, P.C.
(Joseph G. Krenitsky, Esq.
of Counsel) for Plaintiffs
SCOLARO, SHULMAN, COHEN, LAWLER,
BURSTEIN & FERRARA, P.C.
(Ted Williams, Esq.
of Counsel) for Defendant
THOMAS JOHN MURPHY
(Thomas J. Murphy, Esq.
of Counsel) for Defendant
DECISION AND ORDER
March 5, 1996
The Court grants the motion of defendant, Niagara
Mohawk, for summary judgment dismissing the complaint and
cross claims against it. Plaintiffs sue for damages for
personal injury to infant Aaron Mistretta when he was
struck by a car after dark in an area ordinarily
illuminated by a streetlight. Plaintiffs claim the light
was not working on the night of the accident.
Niagara Mohawk owns and is responsible under contract
with the City of Dunkirk for maintenance and repair of
streetlights in the city.
The case law is clear that a public utility is not
liable for negligent failure to provide service absent a
contractual relationship with a plaintiff. Goldsteinv.
ConsolidatedEdison, 115 AD2d 34, Cranev.CityofNewYork
andConsolidatedEdison, 99 AD2d 963. Niagara Mohawk's
duty in this case is to the City of Dunkirk, not to
By its November 1, 1995 Decision/Order, this Court
dismissed plaintiffs' claims against the City of Dunkirk
because plaintiffs failed to prove there was an outage of
the streetlight in question; failed to prove the City had
notice of any outage.
That decision recited:
"Mrs. Mistretta's affidavit identified several
people who reported to her that the light standard
in the area of the accident was not working on that
dark, overcast night, but, there were no affidavits
by those alleged witnesses."
Nor were any affidavits by the alleged witnesses
submitted by plaintiffs on this motion.
Defendant, on the other hand, presented an affidavit
that a full search of records before and after the accident
indicates no outages or repairs at the accident location.
Hence, even if the utility was responsible directly to
plaintiffs, plaintiffs submitted no proof there was an
outage or notice of an outage. Proof of an outage and
notice are critical to withstand defendant's motions for
No costs to either party.
The signing, filing, and mailing of a copy by the
Court of this Decision and Order to all Counsel shall not
constitute notice of entry required by CPLR 2220. Counsel
are not relieved from the applicable provisions of that
section respecting notice of entry.
THIS IS THE DECISION AND ORDER OF THIS COURT.
Dated: March 5, 1996
Mayville, New York
Supreme Court Justice
(1) Notice of Cross-Motion by Defendant;
Dated: January 22, 1996
(2) Supplemental Affidavit by Defendant;
Dated: December 20, 1995
(3) Supplemental Affidavit by Defendant;
Dated: January 26, 1996
(4) Affidavit in Opposition of Summary Judgment by
Plaintiff; Dated: January 4, 1996
(5) Responding Affidavit by Defendant;
Dated: January 5, 1996
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on the same date.
SUMMARY JUDGMENT; NEGLIGENCE; UTILITY; DUTY TO NON-CUSTOMER
FOR NEGLIGENT FAILURE TO PROVIDE SERVICE.