| Murphy v Town of Hempstead |
| 2008 NY Slip Op 09049 [56 AD3d 631] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Carol Murphy, Respondent, v Town of Hempstead,Appellant, and Dale J. Pierson, Respondent. |
—[*1] Ferro, Kuba, Mangano, Skylar, Gacovino & Lake, P.C., New York, N.Y. (Kenneth E.Mangano and George J. Parisi of counsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Town of Hempsteadappeals, as limited by its brief, from (1) so much of an order of the Supreme Court, NassauCounty (McCormack, J.), dated August 21, 2007, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and (2) so much of anorder of the same court dated November 28, 2007, as, upon reargument, adhered to the priordetermination.
Ordered that the appeal from the order dated August 21, 2007 is dismissed, as the portion ofthe order appealed from was superseded by the order dated November 28, 2007, made uponreargument; and it is further,
Ordered that the order dated November 28, 2007 is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
On the evening of October 29, 2004 the plaintiff allegedlytripped and fell on a cracked sidewalk in the appellant Town of Hempstead. She subsequentlycommenced the present action, alleging that the accident was proximately caused by theappellant's failure to maintain the sidewalk and the street lights in the area adjacent to theaccident site.
In its papers submitted on its motion for summary judgment, the appellant failed to addressthe claim that the nearest street light was not functioning at the time of the occurrence.Accordingly, the appellant failed to establish its prima facie entitlement to judgment as a matterof law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The appellant'scontention that it had no duty to provide illumination in the vicinity of the occurrence wasimproperly raised for the first time in its reply papers (see Canaan v Costco WholesaleMembership, Inc., 49 AD3d 583 [2008]). In any event, the circumstances here are readilydistinguishable from the case on which the appellant relies, in which we observed that "[a]municipality's duty to maintain existing street lights is limited to those situations in whichillumination is necessary to avoid dangerous and potentially hazardous conditions" (Cracas vZisko, 204 AD2d 382, 383 [1994]). Here, in addition to the issue pertaining to the lightingconditions, the plaintiff alleged that a defect existed in the sidewalk where she was injured.
Since the appellant failed to establish its prima face entitlement to summary judgment, it isnot necessary to address the sufficiency of the plaintiff's opposition papers (see Burrell v Cityof New York, 49 AD3d 482 [2008]).
Upon reargument, the Supreme Court properly adhered to its original determination denyingthe appellant's motion for summary judgment (see Haggerty v Quast, 48 AD3d 629, 631[2008]). Spolzino, J.P., Florio, McCarthy and Dickerson, JJ., concur.