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KIRTOGLOU v. New York Telephone Company, Appellant. (1997)

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Supreme Court, Appellate Division, Third Department, New York.

Erika A. KIRTOGLOU et al., Respondents, v. Gerald FOGARTY et al., Defendants, New York Telephone Company, Appellant.

Decided: January 30, 1997

Before WHITE, J.P., and CASEY, PETERS, SPAIN and CARPINELLO, JJ. Tobin & Dempf (William H. Reynolds, of counsel), Albany, for appellant. Bond, Schoeneck & King (Patrick L. Seely Jr., of counsel), Albany, for respondents.

This personal injury action arises from a motor vehicle accident on Fogarty Road in the Town of Schaghticoke, Rensselaer County.   Fogarty Road is a two-lane road, approximately 21 feet wide, with a double-yellow line down the middle and an unimproved shoulder on each side.   While traveling west on Fogarty Road, plaintiff Erika A. Kirtoglou (hereinafter plaintiff) crossed the double-yellow line into the eastbound lane of traffic in order to avoid several parked cars in the westbound lane.   In so doing, plaintiff's vehicle, which was traveling three miles over the posted 45 mile-per-hour speed limit, crashed into an oncoming eastbound vehicle.   Plaintiff's vehicle then spun around, crossed back over into the westbound lane and left the paved portion of Fogarty Road, striking a truncated utility pole owned and maintained by defendant New York Telephone Company (hereinafter defendant).   The utility pole, which had been installed in 1951, was five feet high at the time of the accident and located in a grassy area five feet off the paved portion of Fogarty Road.

Plaintiff and her parents, derivatively, commenced this action against, among others, defendant alleging that it was negligent “in failing to properly design, create, place, keep, use, maintain, repair or move or cause to be removed the pole in the vicinity of the Fogarty property” and that such negligence was a proximate cause of plaintiff's injuries.   After issue was joined and some discovery ensued, defendant moved for summary judgment dismissing the complaint against it, which was denied by Supreme Court.   Thereafter, defendant moved for reargument and renewal.   Supreme Court granted that part of defendant's motion which sought reargument, but nevertheless adhered to its original decision denying defendant summary judgment.   Supreme Court denied that part of defendant's motion seeking renewal on the ground that defendant failed to set forth a justifiable excuse for not placing its “new” evidence before the court on its original motion for summary judgment.   Defendant appeals from both orders.

 Because we find, as a matter of law, that the presence of the utility pole in the grassy area off Fogarty Road did not cause the accident at issue, summary judgment should have been granted to defendant.   The Court of Appeals' decision in Tomassi v. Town of Union, 46 N.Y.2d 91, 412 N.Y.S.2d 842, 385 N.E.2d 581, which involved a motor vehicle accident occurring on a 22-foot-wide, two-lane roadway with drainage ditches on both sides, is instructive.   As noted by the Court of Appeals in Tomassi:

Undoubtedly, certain risks are unavoidable.   Especially in rural locales, such objects as utility poles, drainage ditches, culverts, trees and shrubbery are often in close proximity to the traveled right of way * * *.   But for the careful driver, the placement of these items near the pavement creates no unreasonable danger (id., at 97, 412 N.Y.S.2d 842, 385 N.E.2d 581 [citation omitted] ).

Travel beyond a roadway whose width is more than adequate to ensure safe passage of vehicles, the Tomassi court noted, “is neither contemplated nor foreseeable” (id. at 97, 412 N.Y.S.2d 842, 385 N.E.2d 581;  see, Crecca v. Central Hudson Gas & Elec. Corp., 146 A.D.2d 858, 536 N.Y.S.2d 266;  Kinne v. State of New York, 8 A.D.2d 903, 186 N.Y.S.2d 895, affd. 8 N.Y.2d 1068, 207 N.Y.S.2d 283, 170 N.E.2d 414).   Indeed, “[a] driver who is forced to leave the paved portion of the highway by the misconduct of * * * other[s] * * * would be as likely to hit [an object] 10 feet or more from the pavement as he [or she] would one closer” (Kinne v. State of New York, supra, at 903, 186 N.Y.S.2d 895;  see, Ellis v. State of New York, 16 A.D.2d 727, 728, 226 N.Y.S.2d 803, affd. 12 N.Y.2d 770, 234 N.Y.S.2d 718, 186 N.E.2d 566).

Here, even if plaintiffs raised material issues of fact that defendant's placement of the utility pole five feet off the paved portion of Fogarty Road might have been negligent and contributed to plaintiff's injuries, “the record is devoid of any evidence establishing that such negligence was the proximate or concurring cause of the accident ” (Tomassi v. Town of Union, supra, at 98, 412 N.Y.S.2d 842, 385 N.E.2d 581 [emphasis supplied];  see, Hayes v. Malkan, 26 N.Y.2d 295, 298 n. 3, 310 N.Y.S.2d 281, 258 N.E.2d 695;  Darling v. State of New York, 16 N.Y.2d 907, 908, 264 N.Y.S.2d 698, 212 N.E.2d 152;  Alberti v. Rydill, 152 A.D.2d 520, 522, 543 N.Y.S.2d 463;  Di Marco v. Verone, 147 A.D.2d 671, 672, 538 N.Y.S.2d 280;  Crecca v. Central Hudson Gas & Elec. Corp., supra;  Scotti v. Niagara Mohawk Power Corp., 136 A.D.2d 478, 479, 523 N.Y.S.2d 115;  Kinne v. State of New York, supra;  but see, Juliano v. New York Tel. Co., 160 A.D.2d 673, 553 N.Y.S.2d 451;  Olson v. State of New York, 139 A.D.2d 713, 527 N.Y.S.2d 534).1  The accident in this case was caused by the manner in which plaintiff drove her vehicle in response to obstructing vehicles in the westbound lane of traffic (see, Di Marco v. Verone, supra;  Scotti v. Niagara Mohawk Power Corp., supra ).2  Notably, none of the evidence submitted by plaintiffs in opposition to defendant's summary judgment motion, including the affidavit of their expert witness, raised a material factual dispute regarding how and why this accident took place or, more precisely, whether the presence of the utility pole was one of its causes.   Put another way, under no version of events that day can it be said that this accident was set into motion by the presence of the utility pole on the side of Fogarty Road.

 Accordingly, even assuming (without deciding) negligence on defendant's part, it was not the proximate producing cause of plaintiff's accident and liability, therefore, simply does not lie against defendant (see, Hayes v. Malkan, supra;  Di Marco v. Verone, supra;  Crecca v. Central Hudson Gas & Elec. Corp., supra;  Scotti v. Niagara Mohawk Power Corp., supra;  see generally, Gleason v. Reynolds Leasing Corp., 227 A.D.2d 375, 642 N.Y.S.2d 79, lv. denied 89 N.Y.2d 802, 653 N.Y.S.2d 279, 675 N.E.2d 1232;  Stein v. Pat Noto Inc., 226 A.D.2d 624, 641 N.Y.S.2d 353).   Thus, Supreme Court erred in denying defendant's motion for summary judgment.   We further note that, because plaintiffs have failed to demonstrate how further discovery might reveal the existence of material facts within defendant's exclusive knowledge with respect to the manner in which this accident occurred, summary judgment is not premature (see, Halsey v. County of Madison, 215 A.D.2d 824, 626 N.Y.S.2d 311).

As a final matter, nothing contained in the papers submitted in support of defendant's motion for reconsideration warrants a contrary result.

ORDERED that the orders are reversed, on the law, with costs, motion granted, summary judgment awarded to defendant New York Telephone Company and complaint dismissed against it.


1.   Plaintiffs' reliance on Bottalico v. State of New York, 59 N.Y.2d 302, 464 N.Y.S.2d 707, 451 N.E.2d 454 is not compelling.   At issue in Bottalico was the condition of a roadway shoulder.   The Court of Appeals noted that “[i]t is * * * both foreseeable and contemplated that, once provided, an improved shoulder at times will be driven upon” (id., at 305, 464 N.Y.S.2d 707, 451 N.E.2d 454).   The court further held that “[n]o meaningful legal distinction can be made between a traveler who uses a shoulder with justification and one who uses it negligently insofar as how such conduct relates to whom a duty is owed to maintain the shoulder” (id., at 306, 464 N.Y.S.2d 707, 451 N.E.2d 454).

2.   We need not, and specifically do not, make any findings with respect to the alleged negligence of either plaintiff or the owners of the obstructing vehicles.   These issues are not before this court and not essential to our holding that defendant's placement of the utility pole in no way caused this accident.


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