Brooks v. New York State Thruway Auth.

51 N.Y.2d 892 (1980)

Roger N. Brooks, Individually and as Executor of Ella M. Pease, Deceased, Appellant, v. New York State Thruway Authority, Respondent. (Claim No. 59820.) Robert F. Griffith, Jr., as Executor of Donald J. Pease, Deceased, Appellant, v. New York State Thruway Authority, Respondent. (Claim No. 59821.)

Court of Appeals of the State of New York.

Argued October 7, 1980.

Decided November 11, 1980.

Manley H. Thaler for appellants.

Robert Abrams, Attorney-General (Vernon Stuart and Shirley Adelson Siegel of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*893MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The experts for both sides testified that the hole in the highway was neither of the size nor the depth to deflect the tire of the claimants' vehicle. Nor was there evidence that striking the hole would produce any bump or condition which would cause the driver to lose control of the vehicle. The evidence was insufficient to establish a casual relationship between the State's alleged negligence in failing to repair the pothole and the accident in this case. Although there was some testimony that the accident could have been caused by an attempt to avoid the pothole a conclusion that this had in fact occurred would be speculative on this record.

*894With this uncertainty as to causation, it must be concluded that the claimants have failed in their proof.

Order affirmed, with costs, in a memorandum.