Opinion
September 18, 1995
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the interlocutory judgment is reversed, on the law, without costs or disbursements, and the complaint is dismissed.
In the early evening of March 20, 1988, the plaintiff was operating his motor scooter in the eastbound lane of Long Island Avenue in Babylon when his motor scooter collided with another eastbound vehicle operated by the third-party defendant Elestine M. Brown. The impact caused the plaintiff to be thrown from the motor scooter. Before landing, the plaintiff struck the metal post of a school crosswalk sign. The impact severed his leg above the knee. The plaintiff commenced suit against the Town of Babylon (hereinafter the Town), alleging that it was negligent in its placement of the sign. The jury found the Town was negligent and that the negligence was a proximate cause of the accident.
We find that the evidence presented is insufficient to establish that the Town was negligent in its placement of the school crossing sign. The plaintiff's expert testified that placement of the crosswalk sign 123 feet from the crosswalk violated the standards set forth in the New York State Uniform Traffic Control Devices Manual (hereinafter the Manual) and constituted a "deviat[ion] from accepted practices". There was no testimony that the placement created a hazard. In this case, although a deviation from the standards set forth in the Manual might be a factor in determining negligence, the deviation alone is insufficient to establish negligence (see, Price v Hampson, 142 A.D.2d 974). In any event, even if the placement of the sign was negligent, the Town cannot, as a matter of law, be found liable, unless the alleged negligence was a proximate cause of the accident (see, Applebee v State of New York, 308 N.Y. 502; see also, Levitt v County of Suffolk, 145 A.D.2d 414). Under the facts of this case, we find, as a matter of law, that the placement of the sign was not a proximate cause of the accident (see, Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 314).
The plaintiff also alleges that the Town is liable because the plaintiff's "second collision", with the crosswalk sign, was a "substantial factor in the aggravation of the plaintiff's injuries". We reject this argument. The negligence of the plaintiff and the third-party defendant merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated (see, Ventricelli v Kinney Sys. Rent A Car, 45 N.Y.2d 950; cf., Lacey v Horan, 119 A.D.2d 806). Copertino, J.P., Santucci, Altman and Friedmann, JJ., concur.