Zasada v. Niagara Mohawk Power Corp. , 50 A.D.2d 1011 ( 1975 )

Kane, J. (dissenting).

In our view the Trial Justice was absolutely correct in dismissing the actions against defendant Niagara Mohawk Power Corporation. The physical facts are such that in reviewing the record as a whole, there is no rational basis upon which a jury could find Niagara Mohawk liable (Blum v Fresh Grown Preserve Corp., 292 NY 241). We are unable to understand how constructive notice of a specific dangerous condition can be charged to Niagara Mohawk when it is merely carrying out its day to day work on a job site covering many square miles. There are detailed requirements for actual notice to an electrical utility company when work is undertaken on a construction site (12 NYCRR Part 23). In fact, the record establishes that this procedure had been followed by these very respondents prior to the accident herein. To use the fact that their men were in the area on other occasions pursuant to actual notice as a basis to charge Niagara Mohawk with constructive notice of a condition physically far removed is, to us, manifestly unfair. We would affirm the judgment.