SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

MARION MISTRETTA, AS PARENT

AND COURT APPOINTED LEGAL

GUARDIAN OF AARON MISTRETTA;

AND AARON MISTRETTA

Plaintiffs,

vs Index No. H-8421

WILLIAM R. HOLLMAN, KADA

BENNACER, INDIVIDUALLY AND

D/B/A DINAPOLI'S PIZZERIA;

AND NIAGARA MOHAWK POWER

CORPORATION

Defendants.

_____________________________________________

MISERENDINO, CELNIKER,

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

Bennacer/Dinapoli's

THOMAS JOHN MURPHY

(Thomas J. Murphy, Esq.

of Counsel) for Defendant

Niagara Mohawk

DECISION AND ORDER

March 5, 1996

GERACE, J.

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

plaintiffs.

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

summary judgment.

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

_________________________________

JOSEPH GERACE

Supreme Court Justice

PAPERS CONSIDERED:

(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.