Clementoni v. Consolidated Rail Corp.

Appeals from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered July 7, 2005. The order denied the motions of defendants Paul Skowron, as voluntary administrator of the estate of Raymond Skowron, deceased, and Harold M. Gardner and Patricia Gardner for summary judgment dismissing the complaint and cross claims against them. It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motions are granted, and the complaint and cross claims against defendants Paul Skowron, as voluntary administrator of the estate of Raymond Skowron, deceased, and Harold M. Gardner and Patricia Gardner are dismissed. [Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when his vehicle collided with a train. The accident occurred at the grade crossing of railroad tracks and a private road owned by Raymond and Gertrude Skowron, each of whom is now deceased. By a consent order, defendant Paul Skowron was substituted as party defendant for both decedents as voluntary administrator of the estate of [987] Raymond Skowron, “Gertrude Skowron having not left an estate.” Defendants Harold M. Gardner and Patricia Gardner own property abutting the railroad tracks and the private road. Supreme Court erred in denying the motions of Paul Skowron and the Gardners seeking summary judgment dismissing the complaint and cross claims against them on the ground that decedents and the Gardners owed no duty to warn or protect plaintiff from the allegedly dangerous condition of the railroad crossing. “It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff.... In the absence of duty, there is no breach and without a breach there is no liability” (Pulka v Edelman, 40 NY2d 781, 782 [1976], rearg denied 41 NY2d 901 [1977]; see Sanchez v State of New York, 99 NY2d 247, 252 [2002]). Further, “[t]he existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the courts” (Sanchez, 99 NY2d at 252, citing Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]; see Sheila C. v Povich, 11 AD3d 120, 125-126 [2004]). With respect to the motion of Paul Skowron, we reject plaintiffs contention that decedents had a duty to control the railroad crossing by erecting gates or other devices to warn of the approach of a train (see Ludlam v Guilford Transp. Indus., 145 AD2d 860, 862 [1988], lv denied in part and dismissed in part 74 NY2d 733 [1989]; cf. Railroad Law § 53). Even assuming, arguendo, that decedents had a duty to erect a sign warning the users of the private road owned by decedents of the presence of the railroad crossing (see generally § 53-a), we conclude on the record before us that the failure to erect such a sign was not a proximate cause of the accident as a matter of law. Plaintiff testified at his deposition that he was aware of the railroad crossing, having passed over it on three prior occasions that day. He also testified that, just before the accident, he approached the railroad crossing at a speed of five miles per hour, stopped approximately 20 to 25 feet short of the railroad crossing, and looked in both directions along the railroad tracks before proceeding onto the tracks. “Under these circumstances, . . . plaintiffs awareness of the [railroad tracks] eliminated the absence of warning signs as a proximate cause of the accident” (Gattone v Conlan, 299 AD2d 394, 394-395 [2002]; see Applebee v State of New York, 308 NY 502, 507-508 [1955]; Howard v Tylutki, 305 AD2d 907, 908 [2003]; Gilberto v Town of Plattekill, 279 AD2d 863, 864-865 [2001], lv denied 96 NY2d 710 [2001]; see also Atkinson v County of Oneida, 59 NY2d 840, 841-842 [1983], rearg denied 60 NY2d 587 [1983]). [988] With respect to the motion of the Gardners, we reject plaintiffs contention that they may be held liable for causing or allowing trees and other vegetation on their property to obstruct a person’s view of an oncoming train at the railroad crossing. It is well established that “there is no common-law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway” (Barnes v Stone-Quinn, 195 AD2d 12, 14 [1993]; see Krotz v CSX Corp., 115 AD2d 310 [1985]; see also Kolkmeyer v Westhampton Taxi & Limo Serv., 261 AD2d 587, 588 [1999]; Ingenito v Robert M. Rosen, P.C., 187 AD2d 487, 488 [1992], lv denied 81 NY2d 705 [1993]). In our view, the same rule applies where, as here, the allegedly obstructed “highway” is a private road not owned by the abutting property owners. We therefore reverse the order, grant the motions of Paul Skowron and the Gardners, and dismiss the complaint and cross claims against them. All concur except Gorski and Green, JJ., who dissent and vote to affirm in the following memorandum.