Opinion
January 14, 1988
Appeal from the Supreme Court, Bronx County (Jack Turret, J.).
At approximately 4:00 A.M. on July 4, 1982, the automobile in which plaintiff was a passenger was proceeding southbound into a curve on State Route 9G in the Town of Germantown, Columbia County, when it left the roadway, continued in an uncontrolled fashion for approximately 60 feet on the shoulder of the road before skidding sideways for some 229 feet and slamming broadside into defendant's utility pole, which was located 8 feet from the edge of the paved roadway and 3 feet from the edge of the gravel shoulder. The operator of the vehicle subsequently pleaded guilty to a charge of driving while intoxicated.
Under these facts, assuming (but not deciding) negligence on the part of Niagara Mohawk, it was not the proximate cause of plaintiff's injuries. Rather, it was the manner in which the automobile was being operated at the time and not the placement of the utility pole 8 feet from the edge of the 24-foot-wide roadway, which was the proximate producing cause of the accident. (See, Hyde v County of Rensselaer, 51 N.Y.2d 927, 929-930; Hayes v Malkan, 26 N.Y.2d 295, 298, n 3; Darling v State of New York, 16 N.Y.2d 907, 908; see also, Tomassi v Town of Union, 46 N.Y.2d 91, 97-98.)
Concur — Kupferman, J.P., Sullivan, Asch and Ellerin, JJ.