134 A.D.2d 774 | N.Y. App. Div. | 1987
Appeal from a judgment of the Court of Claims (Benza, J.), entered May 22, 1986, which dismissed the claim.
On March 18, 1983 at about 10:00 p.m., claimant’s decedent was fatally injured in a one-car accident when the vehicle she was driving in an easterly direction on Route 9P in the Town
We agree with the conclusion reached by the Court of Claims that claimant failed to establish any breach of duty on the part of the State which proximately contributed to the happening of the accident or decedent’s resultant injuries. Claimant advanced several alternative theories upon which to base liability of the State. First, claimant’s expert opined that the proper safety plan for the hazards of the curves and roadside obstacles within the adjacent "safe recovery area” was to have reduced the speed to 30 miles per hour and install a guide rail system. The State’s evidence, however, was that its warning system complied with the State Manual of Uniform Traffic Control Devices and that a "ballbank test”, the best accepted indicator of safe curve speed, confirmed the propriety of the advisory reduced 35 mile-per-hour speed. There was no evidence submitted by claimant that the plan adopted by the State was the result of inadequate study or lacked a reasonable basis. Consequently, the fact that claimant’s expert believed that it was deficient is not a basis upon which to impose liability upon the State (see, Weiss v Fote, 7 NY2d 579, 585-586; Van De Bogart v State of New York, 133 AD2d 974).
Next, claimant’s expert contended that the State’s failure either to remove the tree struck by decedent, which stood within 30 feet of the highway and within the State’s right-of-
Finally, claimant contends that the prior accident record of this section of Route 9P, the evidence of frequent need to replace the knocked down guideposts and 1981 photographs of scarring of trees in the safe recovery area in the vicinity of the accident put the State on notice that the tree struck by decedent’s car was a hazard requiring its removal. We disagree. Claimant failed to prove that the prior accidents involved vehicles leaving the highway and colliding with trees or, indeed, that there were any other pertinent circumstances in the prior accidents similar to the instant one. Accordingly, prior accidents were not proof of the State’s notice of any possible unreasonably dangerous conditions involved in the instant case (see, Kaplan v City of New York, 10 AD2d 319). The only evidence regarding earlier destruction of the guideposts was that they were knocked down by the State’s plows during snow removal operations. This being so, the Court of Claims could properly conclude that the mere scarring of the trees, without any record of reports of accidents related thereto, was insufficient to establish notice. Accordingly, the dismissal of the instant claim should be affirmed.
Judgment affirmed, without costs. Main, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.