Relief Requested

The defendant, Welsbach LI, (hereinafter referred to as "Welsbach"), moves for an order [*2]pursuant to CPLR §3212 granting Welsbach summary judgment dismissing the Verified Complaint and any and all cross-claims as and against Welsbach. The plaintiff, by way of stipulation dated September 9, 2008, discontinued this against Wellsback Electric Corp. The defendant, Welsbach, submits a Memorandum of Law in favor of its motion for summary judgment. The defendant, the Village of Mineola, (hereinafter referred to as the "Village"), submits partial opposition. The defendant, Portugese American Club of Mineola, Inc., (hereinafter referred to as the "Portugese American Club"), submits opposition. The plaintiff submits opposition. The defendant, Welsbach, submits a reply and a reply Memorandum of Law.

The defendant, the Town of Hempstead, cross-moves for an order pursuant to CPLR §3212 granting the Town of Hempstead summary judgment dismissing plaintiff's complaint and any and all cross-claims against the Town of Hempstead. The plaintiff submits opposition. The defendant, Jack Amador, (hereinafter referred to as "Amador"), submits opposition. The Portugese American Club submits opposition. The Town of Hempstead submits a reply.

The defendant, the Town of North Hempstead, cross-moves for an order pursuant to CPLR §3212 granting the Town of North Hempstead summary judgment dismissing the Verified Complaint and any all cross-claims against the Town of North Hempstead. The defendant, Amador, submits opposition. The plaintiff submits opposition. The defendant, the Portugese American Club, submits opposition. The Town of North Hempstead submits a reply.

The defendant, the County of Nassau, (hereinafter referred to as the "County"), cross-moves for an order pursuant to CPLR §3212 granting the County summary judgment dismissing the Verified Complaint and any and all cross-claims against the County. The defendant, the Village, submits opposition. The defendant, Amador, submits opposition. The plaintiff submits opposition. The defendant, Portugese American Club, submits opposition. The County submits a reply.

The defendant, the Village, cross-moves for an order pursuant to CPLR §3213 granting the Village summary judgment dismissing the Verified Complaint and any and all cross-claims as and against the Village. The defendant, Amador, submits opposition. The defendant, the Portugese American Club, submits opposition. The plaintiff submits opposition. The plaintiff has also submitted a Memorandum of Law in support of plaintiff's opposition to the defendants' motions herein for summary judgment. The defendant, the Village, submits a reply.

The plaintiff initiated this action for personal injuries sustained on June 27, 2007, at approximately 9:04 p.m., when she, a pedestrian, was struck by a motor vehicle operated by the defendant, Amador, at or near the intersection of Roslyn Road and Plymouth Avenue, Village of Mineola, County of Nassau. The plaintiff provides that the defendant, Amador, pled guilty to driving while intoxicated and vehicular assault in the second degree.

The plaintiff alleges that the defendants, Welsbach and the Village, were negligent, careless and reckless concerning the maintenance, control and supervision of the artificial street light at the scene of the occurrence, and in failing to discover, respond, and repair an "out" street light at the scene. The plaintiff alleges that the defendants, in essence, failed to ensure that the area where the accident occurred was properly illuminated. The defendant, Welsbach, and the defendant, the Village, entered into a contract, which provided that Welsbach would maintain, repair, replace, modify, install and relocate existing and future street lighting appurtenances owned by the Village on streets and highways.

The Court of Appeals has established that while a municipality is authorized to install street lighting, it is under no duty to install or maintain street lighting. A municipality's duty to maintain existing street lights is limited to those situations in which illumination is necessary to avoid "dangerous and potentially hazardous conditions". (Thompson v. City of New York, 78 NY2d 682). A city's failure to replace a burned out light bulb in a street light near a busy intersection did not create a dangerous condition that permitted the city to be held liable to a pedestrian struck by a motor vehicle while crossing the street. (Id.) The mere outage of the street light does not render a street

unreasonably safe. In order to prevail, plaintiff must demonstrate that the municipality permitted a dangerous or potentially hazardous condition to exist which caused the injury. (Id.) The alleged dangerous condition must be separate and apart from the allegation of improper lighting. (Id.) The Second Department in Carcas v. Zisko, 204 AD2d 382, and Griffin v. Village of Southampton, 206 AD2d 504, has established that a municipality's duty to maintain existing street lights is limited to those situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions. A plaintiff's allegation that the accident site was dark is insufficient, (Cracas, supra). It has been held that the plaintiff has failed to raise a triable issue of fact as to whether the street light outage created a dangerous or potentially hazardous condition. (Cracas, supra; Griffin, supra). The mere outage of street lights does not demonstrate that the city permitted a dangerous and potentially hazardous condition to exist and cause injury. (Michetti v. City of New York, 184 AD2d 263).

Here, the defendants, Welsbach and the Village, have met their burden of proof on their respective motions for summary judgment.

Once the movant for summary judgment has met his or her burden, it is incumbent upon the party opposing said motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which warrant a trial (Alvarez v. Prospect Hosp., 68 NY2d 320). Even assuming, arguendo, that the street light was not working properly at the time of the accident, this, in and of itself, is insufficient to create a duty for a municipality and/or its contractor to repair or maintain an existing street light. The opposition has failed to come forth with any evidentiary proof in admissible form to establish that the roadway contained a "defect" or "unusual condition" separate and apart from the alleged burnt out street light bulb.

Plaintiff's allegation that the defendants failed to control foliage and green growth at the [*4]subject intersection thereby interrupting the passage of light thereto is unavailing. The conclusory affirmation submitted by plaintiff's attorney is insufficient to create triable issues of fact. In opposing a motion for summary judgment a party must present evidentiary facts sufficient to raise triable issues of fact (Freedman v. Chemical Construction Corp., 43 NY2d 260). Conclusory allegations, bold assertions or speculation are simply insufficient to successfully oppose a motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557; Rotuba Extruders v. Ceppos, 46 NY2d 223). A shadowy semblance of an issue is not enough to defeat a motion for summary judgment. (LoBreglio v. Marks, 105 AD2d 621).

Additionally, the argument that more discovery will help plaintiff oppose the motion is unavailing. "The mere hope that somehow plaintiff will uncover evidence that will prove a case provides no basis pursuant to §3212(f) for postponing a determination of a summary judgment motion." (Plotkin v. Franklin, 179 AD2d 746). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient. (Zuckerman v. City of New York, supra). The opposition has not provided "any basis, other than speculation, for this Court to conclude that discovery will yield information inconsistent with the affidavits provided". (White v. New York City Transit Authority, 308 AD2d 341). The mere hope that discovery will yield a triable issue of fact is an insufficient basis to deny summary judgment. (Lee v. TF De Milo Corp., 29 AD3d 867). Here, the opposition has failed to offer an evidentiary basis to show that further discovery might lead to relevant evidence. (Garrett v. City of New York, 50 AD3d 955).

In light of the foregoing, Welsbach's motion, and the Village's cross-motion, for summary judgment are granted.

The plaintiff alleges, essentially, that the three municipalities, the Town of Hempstead, Town of North Hempstead and the County, were negligent in the ownership, maintenance, design, operation, control and repair of the subject roadway and street lights at the subject location on or prior to June 24, 2007. The County maintains that while the County may have admitted to jurisdiction over Roslyn Road, the County has no duty to maintain the subject roadway and street lights. The County has, by way of affidavit, established that the County does not have jurisdiction over the street lighting on Roslyn Road contained in the Village of Mineola.

Here, the aforesaid three municipalities have made a prima facie showing that they did not own, or design, construct or maintain any portion of the roadway or street lights at the subject location. As there is no duty owed, the municipalities cannot be liable. (Misek-Falkoff v. MTA, 44 AD3d 629, Alcalay v. Town of North Hempstead, 262 AD2d 258, Silver v. Cooper, 199AD2d 255).

Even assuming, arguendo, that the municipal defendants had a duty with respect to the subject roadway and street lights, the municipal defendants have established that they had no notice of any alleged dangerous condition at the subject location. [*5]

Plaintiff's allegation that the defendants failed to control foliage and green growth at the subject intersection thereby interrupting the passage of light thereto, and that the roadway was not properly "speed-signed", is unavailing. The conclusory affirmation submitted by plaintiff's attorney is insufficient to create triable issues of fact.

In light of the foregoing, the Town of Hempstead, the Town of North Hempstead and the County's respective cross-motion for summary judgment are hereby granted.

Accordingly, it is hereby

ORDERED that the plaintiff's Verified Complaint as and against the defendants, Welsbach, L.I., the Town of Hempstead, the Town of North Hempstead, the County of Nassau, and the Village of Mineola, and any and all cross-claims herein as and against the aforesaid defendants, are hereby dismissed, and it is hereby further

ORDERED that the caption in this matter is hereby amended as follows:

________________________________________________

THERESA POPPKE,

Plaintiff,

- against -

PORTUGESE AMERICAN CLUB OF MINEOLA,

MINEOLA PORTUGESE CENTER, INC. and

JACK AMADOR,

Defendants.

________________________________________________

E N T E R :

________________________________

J.S.C. [*6]

Dated: February 17, 2009

cc: Sullivan Papain Block McGrath & Cannavo, P.C.

Ahmuty, Demers & McManus, Esqs.

Morris Duffy Alonso & Faley, Esqs.

Simone Friedman

Picciano & Scahill, P.C.

Lorna B. Goodman, Esq.

Joseph J. Ra, Esq.

London Fischer