Unger v. Village of Fayetteville

— Order unanimously affirmed with costs. Memorandum: On October 3, 1982, plaintiff was injured when he was struck by an automobile as he walked on Highbridge Street, a county road in the Village of Fayetteville. Plaintiff brought suit against the Village, Niagara Mohawk Power Corporation, and the driver and owner of the vehicle, alleging that, at the site of the accident, he was forced to walk in the roadway because the sidewalk terminated and the shoulder of the road was uneven. He also alleged that the streetlight in the vicinity of the accident, designated Niagara Mohawk pole # 17, was not functioning.

Defendant Village moved for dismissal of the complaint or, in the alternative, for summary judgment on the grounds that it had no duty to maintain Highbridge Street and that plaintiff had failed to plead that the Village had received prior written notice of the alleged defects in the road. The motion was denied, and we affirm.

Village Law § 6-628 requires written notice of "actual physical defects in the surface” of a street (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366). The statute does not apply to a burned-out streetlight. Additionally, plaintiff has alleged, and defendant does not dispute, that the Village undertook to provide streetlights on Highbridge Street in the vicinity of the accident. Maintenance of existing streetlights is a proprietary function of the municipality (see, Oeters v City of New York, 270 NY 364; Kamnitzer v City of New York, 265 App Div 636) and, on these facts, application of the "special duty” doctrine (see, Kircher v City of Jamestown, 74 NY2d 251; Cuffy v City of New York, 69 NY2d 255) is unwarranted (see, Thompson v City of New York, 164 AD2d 773). Plaintiff’s unchallenged allegation that defendant failed to maintain its previously installed streetlight in proper working order is sufficient to state a cause of action against the Village. (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Dismiss Complaint.) Present — Dillon, P. J., Boomer, Pine, Balio and Davis, JJ.