Opinion
14709/2006.
Decided May 6, 2011.
This is a personal injury action in which plaintiff, Orlando Marle, seeks to recover monetary damages for injuries he sustained as a result of an automobile accident which occurred at approximately 6:00 p.m. on January 6, 2006 on 140th Avenue under the train trestle near the intersection of Thurston Street in Queens County. In his notice of claim dated January 30, 2006, plaintiff alleges that he was walking across 140th Street under the Long Island Railroad train trestle located above 140th Street when he was struck by an unknown hit and run motorist. Plaintiff claims that he was struck because the area was dark and unilluminated as the streetlight near the trestle was not operational at that time. Plaintiff contends that the City of New York is negligent for failing to maintain the street light in an operational manner.
Plaintiff commenced this action by filing a summons and complaint on July 3, 2006. In his complaint dated June 26, 2006, plaintiff alleges that the LIRR and MTA is the owner or lessee of the street lights on 140th Street at or near the LIRR train trestle located above 140th Street near Thurston Street and that the defendants LIRR and MTA ("LIRR") had a duty to maintain the streetlights in the roadway surrounding the area in question. Plaintiff claims the LIRR breached its duty by failing to maintain the streetlight in an operational condition rendering a portion of the street into complete darkness. Plaintiff contends that he was struck by the automobile due to the dark condition of the street in the area under the trestle where he was crossing the street.
Issue was joined by service of defendants' answer with cross claims on July 27, 2006. Plaintiff served a Bill of Particulars dated December 16, 2009, claiming that the defendants were negligent in their failure to maintain the roadway and the streetlight in a safe manner for the general public. Plaintiff contends that as a result of the hit and run accident he sustained, inter alia, a fractured left knee, a fractured left shoulder and a nasal fracture.
The plaintiff's examination before trial was taken on January 26, 2010. At that time Mr. Marle was 22 years of age. He testified that at the time of the accident he was a junior at Andrew Jackson High School. He stated that on the date of the accident, January 6, 2006 at 6:00 p.m. it was dark and the temperature was below freezing. He had been at a mini-grocery store and was walking on 140th Avenue under the LIRR train trestle towards 184th Street. The trestle crosses 140th Street in the middle of the block between Thurston Street and Edgewood Avenue. When the plaintiff approached the area of the trestle he walked across 140th Avenue. He did not cross at a corner or at a crosswalk. There were no street lights in the vicinity of the railroad trestle where the accident happened. He stated that prior to crossing he looked both ways and did not see any cars coming from either direction. As he crossed into the street he was struck by an automobile that did not stop. The next thing he remembers was waking up in the ambulance.
Counsel also submits the affidavit of Lindon E. Webster, an Engineer in the Electric Traction Department employed by the LIRR. He states that he searched the records of the LIRR but did not find any records in the possession of the LIRR relative to maintenance and repair of the lights in the underpass located at 140th Avenue near Thurston Street in Queens County. He states that no records were in their possession because "it is not the responsibility of the Long Island Rail Road to maintain lights in an underpass, but befalls the municipality within which the underpass is located herein being the City of New York." He states that the Long Island Rail Road's Engineering System Operations Reference Manuel for the Substations Department states that all underpasses in the City (Queens and Brooklyn) limits are maintained by the City.
In his affidavit, counsel for the defendants Thomas L. Chiofolo, Esq. states that it is clear from the plaintiff's pleadings that he attributes the cause of his accident to the hit and run vehicle striking him due to the dark and unilluminated condition of the underpass. Counsel contends that the pleading fails to state a cause of action as plaintiff has failed to plead any facts to show that the LIRR had a duty to maintain street lights under the trestle or in the vicinity of the accident location. Further, counsel contends that even if the street lights were not functioning the plaintiff has failed to establish that the defendants had actual or constructive notice of dangerous or hazardous condition (citing Rios v City of New York , 33 AD3d 780 [2d Dept. 2006]). Counsel also contends that they have made a prima facie showing that they are not liable for the accident as it is the City of New York and not the LIRR who is responsible for maintaining the lights in all of the railroad underpasses in Queens County. Lastly, counsel contends that it is clear that the proximate cause of the accident was not the lack of illumination under the trestle but rather the fact that a hit and run vehicle negligently struck the plaintiff as he was crossing in the middle of the bock outside of the crosswalk and failed to see the vehicle prior to crossing.
It should be noted that the motion of co-defendant, City of New York, for an order granting summary judgment dismissing the complaint and for an order dismissing the complaint against it for failing to state a cause of action pursuant to CPLR 3211(a)(7) was granted by Justice Flug by decision and order dated July 1, 2010. Citing the Court of Appeals decision in Thompson v City of New York, 78 NY2d 682, Justice Flug held that "the mere fact that a street light burned out and that the street was dark is not sufficient to render a street dangerous and is not sufficient to establish a cause of action sounding in negligence." Justice Flug also held that "no probative evidence is offered to establish wether the street light outage created a dangerous or potentially hazardous condition"(citing Cracas v Zisko, 204 AD 382 [2d Dept. 1994]).
In opposition, the plaintiff, Olando Marle submits an affidavit dated March 2, 2011, in which he states that the action arises out of a hit and run automobile accident which occurred at night under a train trestle with no working lights. He claims that the accident "was the fault of the defendants as those parties responsible for keeping the roadway in a lit and safe condition."
Counsel for the plaintiff, Andrew G. Rothstein, Esq., submits an affirmation in opposition to the motion in which he states that "the accident occurred as a result of a hit and run' motor vehicle violently contacting the plaintiff at the scene due to its inability to see the plaintiff due to defendants' failure to illuminate the scene." Counsel notes that the plaintiff testified at his deposition that the street light adjacent to the trestle was not illuminated on the night of the accident. Further, plaintiff testified that there was no lighting under the trestle itself and counsel contends that the LIRR as the owner of the trestle had a duty to provide a safe walking environment and did not do so which was the proximate cause of the accident. Counsel contends that whether or not the failure to illuminate the street under the trestle was the proximate cause of the accident is a question of fact for the jury.
Upon review and consideration of the defendants' motion the plaintiff's affirmation in opposition, and the defendants' reply thereto this court finds as follows:
"On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail" ( Kopelowitz Co., Inc. v Mann, 2011 NY Slip Op 3037 [2d Dept. 2011] quoting Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Leon v Martinez, 84 NY2d 83 [1994]; Hense v Baxter , 79 AD3d 814 [2d Dept. 2010]; Sokol v Leader , 74 AD3d 1180 [2d Dept. 2010])."A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law'" ( Sheroff v Dreyfus Corp. , 50 AD3d 877 , quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman Dicker , LLP, 38 AD3d 34 , 38, 827 N.Y.S.2d 231). Here this court finds that the complaint itself, taking all the facts alleged as true, was sufficient to state a claim for negligence against defendants, The Long Island Rail Road and the Metropolitan Transit Authority.
With respect to the defendant's motion for summary judgment, the proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557).
Here the submissions of the LIRR demonstrated prima facie that the City of New York, rather than the LIRR, had the responsibility for maintenance and repair of the street lights in the area of the trestle. A municipality is authorized to install street lighting pursuant to General City Law § 20(7) and has a duty to maintain its streets in a reasonably safe condition (see Thompson v New York, 78 NY2d 68). The issue of the City's responsibility in this case was resolved by Justice Flug's decision dated July 1, 2010.
Although as plaintiff's counsel contends, a landowner with knowledge of a dangerous condition that could be alleviated by illumination may owe a duty to provide adequate lighting (see Sirface v. County of Erie , 55 AD3d 1401 [4th Dept. 2008]; Cracas v Zisko, 204 AD2d 382 [2d Dept. 1994]), here the only connection with the LIRR was that the accident occurred underneath an LIRR trestle. Plaintiff was walking on a public street which extended under the trestle. There was no railroad station or railroad parking lot in this area. As this area was not used as a stairway, means of approach or any other type of ingress or egress to the railroad or railroad facility, there was no duty on the part of the LIRR to provide lighting for those walking underneath the trestle. As stated above, the landowner with responsibility for lighting the street, under these circumstances would be the City. Although the LIRR has a duty to keep the trestle itself in a safe condition, it is not alleged that the accident was caused by any unsafe condition of the trestle itself. In addition, even if there was a duty on the part of the LIRR, the affidavit of the railroad employee was sufficient to demonstrate, prima facie, that there were no previous complaints to the railroad regarding an inoperable light in this vicinity.
Thus, the LIRR has shown prima facie that they did not have actual or constructive notice of the dangerous condition.
In opposition, the plaintiff failed to raise a question of fact. The plaintiff's contention that the plaintiff was struck by a hit and run driver because of the lack of illumination is speculative. There was no probative evidence to raise a question of fact as to whether the lack of street lighting created a dangerous or hazardous condition which was the proximate cause of the accident (see Rios v City of New York, 33 AD3d 780 [2d Dept. 2006]). In addition, to provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836). Here there was no proof submitted as to how long the lights were inoperable. Thus as the plaintiff has failed to raise a question of fact as the duty of the LIRR to maintain the lighting, or as to notice, or as to proximate cause, the motion for summary judgment must be granted (see Alvarez v Prospect Hospital, 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).
Accordingly, based upon the foregoing it is hereby,
ORDERED, that the defendant's motion for summary judgment is granted and the plaintiff's complaint and any remaining cross-claims are dismissed.