PERRY v. Town of Clinton, Appellant.

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

William H. PERRY, etc., et al., Respondents, v. Matthew S. KAZOLIAS, Defendant, Town of Clinton, Appellant.

Decided: February 24, 2003

GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE and REINALDO E. RIVERA, JJ. O'Connor, McGuinness, Conte, Doyle & Oleson (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City, NY, [Kathleen D. Foley and Christine Gasser] of counsel] ), for appellant. Kelly & Meenagh, Poughkeepsie, NY, (Thomas F. Kelly III of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Town of Clinton appeals from so much of an order of the Supreme Court, Dutchess County (Dillon, J.), dated May 14, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

The defendant Matthew S. Kazolias was driving southbound at a speed of 50 miles per hour on Sodom Road, where the posted speed limit is 30 miles per hour.   He was familiar with the roadway and knew that there was a 90-degree right turn at the end of Sodom Road. The turn is bordered by a stone wall.   On the date of the accident, he did not see the sign indicating the turn ahead and advising a 10-mile-per-hour speed limit until his vehicle was right next to the sign, because for several seconds he had been looking at one of his passengers instead of the roadway.   He applied his brakes and turned to the right, but was unable to negotiate the turn and the vehicle struck the stone wall and a wooden fence.   The plaintiff Tiphanie L. Perry, a passenger in Kazolias' vehicle, was injured.

The plaintiffs allege that the defendant Town of Clinton was negligent in its design and maintenance of the roadway where the accident occurred.   However, even assuming that the Town was negligent, it cannot reasonably be inferred that its conduct was a proximate cause of the accident (see Tomassi v. Town of Union, 46 N.Y.2d 91, 98, 412 N.Y.S.2d 842, 385 N.E.2d 581;  Rendinaro v. City of New York, 254 A.D.2d 342, 679 N.Y.S.2d 72;  O'Hare v. Baer, 240 A.D.2d 381, 382, 658 N.Y.S.2d 125;  Stanford v. State of New York, 167 A.D.2d 381, 382, 561 N.Y.S.2d 796).   Rather, the conduct of Kazolias, who was driving at an excessive rate of speed and failed to keep a proper lookout, severed any connection between the Town's alleged negligence and the happening of the accident (see Parmeter v. Bedard, 295 A.D.2d 779, 780, 744 N.Y.S.2d 69, lv. denied 98 N.Y.2d 614, 751 N.Y.S.2d 169, 780 N.E.2d 980;  Brocato v. Grippe, 269 A.D.2d 414, 415, 702 N.Y.S.2d 901;  Muhlrad v. Town of Goshen, 231 A.D.2d 615, 616, 647 N.Y.S.2d 975).   Furthermore, since Kazolias was familiar with the roadway and the approaching 90 degree turn, the absence of additional warning signs could not be a proximate cause of the accident (see Atkinson v. County of Oneida, 59 N.Y.2d 840, 842, 464 N.Y.S.2d 747, 451 N.E.2d 494;  Gilberto v. Town of Plattekill, 279 A.D.2d 863, 864, 719 N.Y.S.2d 384;  Pateman v. Asaro, 203 A.D.2d 346, 610 N.Y.S.2d 72).   Therefore, the Town was entitled to summary judgment dismissing the complaint insofar as asserted against it.

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