Decided July 1, 1992 Appeal from (3d Dept: 179 A.D.2d 977) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED
Contrary to the plaintiffs' contention, the Supreme Court properly awarded summary judgment to Central Hudson and New York Telephone. It is well settled that "no liability exists for an injury to a traveler who leaves the roadway and strikes an object entirely on private property and not within the highway right-of-way" ( DiMarco v. Verone, 147 A.D.2d 671; see Hayes v. Malkan, 26 N.Y.2d 295; Echorst v. Kaim, 288 A.D.2d 595; Wang v. County of Rockland, 179 A.D.2d 977). In support of their respective cross motions for summary judgment, Central Hudson and New York Telephone relied on the affidavit of a surveyor that the subject utility pole was located on private property pursuant to an easement, and that the County never acquired title to this land.
ra; Kirtoglou v. Fogarty, supra; see also, Di Marco v. Verone, 147 A.D.2d 671). Plaintiff's reliance upon Temple v. Chenango County ( 228 A.D.2d 938) is misplaced due to the different terrain abutting the road as well as the existence of original drawings which included cable guardrails at the area of the accident. Even if we were to determine that plaintiffs raised a material issue of fact on its theories of liability, we would conclude, as a matter of law, that the proximate cause of this accident and plaintiff's consequential injuries was the manner in which Bentley operated this vehicle while in a highly intoxicated state, not a failure by the Town "to provide more safeguards to prevent motor vehicles [from] leaving the roadway" (Tomassi v. Town of Union, supra, at 98; see, Kirtoglou v. Fogarty, supra; Di Marco v. Verone, supra; Scotti v. Niagara Mohawk Power Corp., 136 A.D.2d 478;see also, Hyde v. County of Rensselaer, 51 N.Y.2d 927; Darling v. State of New York, 16 N.Y.2d 907; Wang v. County of Rockland, 179 A.D.2d 977, lv denied 80 N.Y.2d 753; Crecca v. Central Hudson Gas Elec. Corp., 146 A.D.2d 858). Accordingly, summary judgment was properly granted to the Town.
Ordered that the order is affirmed, with costs. The record is devoid of any evidence establishing that a defect in the design, installation, or maintenance of a light post was the proximate or concurring cause of the accident involved in this case ( see, Hyde v. County of Rensselaer, 51 N.Y.2d 927; Kirtoglou v. Fogarty, 235 A.D.2d 1019; Wang v. County of Rockland, 179 A.D.2d 977; DiMarco v. Verone, 147 A.D.2d 671; Crecca v. Central Hudson Gas Elec. Corp., 146 A.D.2d 858; Scotti v. Niagara Mohawk Power Corp., 136 A.D.2d 478). Santucci, J. P., Joy, Friedmann and Luciano, JJ., concur.
Thus, the evidence presented leads the Court to conclude that the sole proximate cause of the accident was the manner in which Cusimano operated his motor vehicle, his failure to observe that which was readily observable, and his failure to adjust his driving accordingly (see Cajas-Romero v Ward, 106 A.D.3d 850, 851 [2d Dept 2013] [Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident]; D'Onofrio-Ruden v Town of Hempstead, 29 A.D.3d 512 [2d Dept 2006] [Even fully crediting testimony that stop sign was obscured by foliage, the driver was also negligent in her failure to see that which should have been seen through a proper use of her senses]; Wang v County of Rockland, 179 A.D.2d 977[3d Dept 1992] [Case dismissed at the conclusion of plaintiffs' case on the ground that plaintiffs failed to establish prima facie that defendants' negligence, if any, was a proximate cause of the accident; the appellate division affirmed the dismissal and concluded that the driver's manner of driving was the sole proximate cause of the accident]). In that regard, the Court finds the testimony of the State's expert to be compelling that Cusimano had sufficient time to act in a manner to avoid the accident and failed to take any evasive action.
Dugan v. Sprung, 280 AD2d 736 (3rd Dept. 2001); Sheppard-Mosely v. King, 10 AD3d 70, 74 (2nd Dept. 2004) aff'd as mod. 4 NY3d 627 (2005); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v. New York Univ. Ctr., 64 NY2d 851, 853 (1985). It is well settled that "no liability exists for an injury to a traveler who leaves the roadway and strikes an object entirely on private property and not within the highway right-of-way" DiMarco v. Verone, 147 AD2d 671 (2nd Dept. 1989); see Hayes v. Malkan, 26 N.Y.2d 295 (1970); Echorst v. Kaim, 288 AD2d 595 (2nd Dept. 2001); Wang v. County of Rockland, 179 AD2d 977 (2nd Dept. 1992). However, the "placement of poles or other objects...in close proximity to the pavement and within the highway right of way, raises a question of fact for jury determination as to whether the placement of that object was such as to create an unreasonable danger for travelers on the highway.