Adamy v. Ziriakus , 605 N.Y.S.2d 583 ( 1993 )

Order unanimously reversed on the law without costs, motion granted and complaint against defendant Niagara Mohawk Power Corporation dismissed. Memorandum: Plaintiffs decedent was killed as a result of a collision between his vehicle and one driven by defendant Mark T. Ziriakus. Decedent’s vehicle struck a utility pole located seven feet from the edge of the paved roadway and .6 feet from the edge of the New York State right-of-way. Ziriakus was convicted of DWI and failure to yield the right-of-way.

The IAS Court erred in denying defendant Niagara Mohawk Power Corporation’s motion for summary judgment. The utility pole was located at the edge of the public right-of-way, as far from the traveled portion of the roadway as practicably possible, and was placed in accordance with State regulations (see, Guy v Rochester Gas & Elec. Corp., 168 AD2d 965, lv denied 77 NY2d 808). The placement of the pole "did not create an unreasonable hazard to motorists, and therefore defendant was under no duty to place the pole outside the right-of-way” (Guy v Rochester Gas & Elec. Corp., supra, at 965).

Plaintiff attempts to distinguish Guy v Rochester Gas & Elec. Corp. (supra) by asserting that in Guy there was no allegation that placement of the pole was in violation of State regulations. The record here establishes that placement complied with State regulations (see, 17 NYCRR 131.8). Plaintiff also argues that Niagara Mohawk could have used a "breakaway” utility pole, but presented no proof that use of a breakaway pole was practicable. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Summary Judgment.) Present—Denman, P. J., Callahan, Pine, Doerr and Boehm, JJ.