Opinion
December 29, 1993
Appeal from the Supreme Court, Erie County, Wolf, Jr., J.
Present — Denman, P.J., Callahan, Pine, Doerr and Boehm, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint against defendant Niagara Mohawk Power Corporation dismissed. Memorandum: Plaintiff's decedent was killed as a result of a collision between his vehicle and one driven by defendant Mark T. Ziriakus. Decedent's vehicle struck a utility pole located seven feet from the edge of the paved roadway and .6 feet from the edge of the New York State right-of-way. Ziriakus was convicted of DWI and failure to yield the right-of-way.
The IAS Court erred in denying defendant Niagara Mohawk Power Corporation's motion for summary judgment. The utility pole was located at the edge of the public right-of-way, as far from the traveled portion of the roadway as practicably possible, and was placed in accordance with State regulations (see, Guy v Rochester Gas Elec. Corp., 168 A.D.2d 965, lv denied 77 N.Y.2d 808). The placement of the pole "did not create an unreasonable hazard to motorists, and therefore defendant was under no duty to place the pole outside the right-of-way" (Guy v Rochester Gas Elec. Corp., supra, at 965).
Plaintiff attempts to distinguish Guy v Rochester Gas Elec. Corp. (supra) by asserting that in Guy there was no allegation that placement of the pole was in violation of State regulations. The record here establishes that placement complied with State regulations (see, 17 NYCRR 131.8). Plaintiff also argues that Niagara Mohawk could have used a "breakaway" utility pole, but presented no proof that use of a breakaway pole was practicable.