Opinion
May 13, 1971
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Ulster County) to review a determination of the Commissioner of Motor Vehicles suspending the operator's license of petitioner. At about 1 o'clock on the morning of October 31, 1969, petitioner was operating his automobile on a two lane blacktop highway when the vehicle left the road and went into a ditch, resulting in injuries to petitioner and his passenger and "total" damage to the car. Petitioner testified: that the weather was clear and the pavement dry; that the accident happened at a sharp right turn on an upgrade with faded double solid lines in the center; that he was making the turn and "going about 30, 35" miles per hour; that a (G.T.O.) car came upon him from the rear with real bright lights and, in passing around the curve, crossed the double lines and swerved over and cut petitioner short, driving petitioner to the right and onto the shoulder; that petitioner tried to get over, hit sand and, in trying to get his car "around", it went across the road into a ditch on the left side. Although petitioner first stated he had no drinks that night, he later admitted that he had four or five beers at a restaurant in the four hours prior to accident. The State Police investigated the accident but did not ticket petitioner. The passenger, the only other witness, testified he was asleep at the time and did not know what had happened. The Referee did not accept petitioner's explanation that he was forced off the road and found that petitioner "drove at a speed * * * in violation of Section 1180 (e) of the Vehicle and Traffic Law, and that such excessive speed was the direct and proximate cause of this accident", basing this finding on petitioner's "running off the pavement to the right and attempting to negotiate the sharp curve to the right; his loss of control of the automobile, as evidenced by his swerving to the left and running into the ditch off the left side of the road." There is nothing to show that petitioner exceeded any speed limit nor was there any proof of speed other than that given by petitioner. The mere leaving of the pavement to the right, the swerving to the left and the running into the ditch, did not warrant the conclusion that the statute in question had been violated ( Matter of Weisinger v. Macduff, 285 App. Div. 607; Matter of Fake v. Macduff, 281 App. Div. 630; cf. Manley v. New York Tel. Co., 303 N.Y. 18, 25-26; Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7). Since there is no basis for a finding that speed was the causative factor of the accident, the determination must be annulled ( Matter of Wilber v. Hults, 22 A.D.2d 844; Matter of Disney v. Hults, 16 A.D.2d 494). The Referee did not base his decision on the fact that defendant had consumed beer, was tired or was guilty of reckless driving in violation of section 1190 Veh. Traf. of the Vehicle and Traffic Law. Determination annulled and petition granted, with costs.
I dissent and vote to confirm the determination. I am of the opinion that there was ample evidence in the record to support the Commissioner's determination. On the record, the Referee could properly find that petitioner, driving at a speed too great for existing conditions, ran off the pavement to the right in attempting to negotiate the sharp right-hand curve, and then lost control of his vehicle, with the result that he swerved to the left and ran into a ditch off the left side of the road. Petitioner was well acquainted with the road, and knew, or should have known, that a driver negotiating a sharp curve, should reduce his speed to a rate commensurate with the existing potential danger. (Vehicle and Traffic Law, § 1180, subds. [a], [e].) Under the circumstances it was reasonable for the Referee to find that had he slowed down, he would not have lost control. The circumstantial evidence, including the total loss of his car and the serious knee injuries sustained by his passenger, when considered with the testimony, supports the determination. The Referee was justified in refusing to accept petitioner's version of the accident. His credibility came under serious fire when he changed his original testimony and admitted that he had consumed four or five beers.