Edward R. Nixon, Appellant, v. State of New York, Respondent

Edward R. Nixon, Appellant, v State of New York, Respondent. (Claim No. 69054.) [MAJORITY — Mikoll, J.] Mikoll, J. Appeal from an order of the Court of Claims (Hanifin, J.), entered June 1,1984, which dismissed the claim. Claimant filed a claim against the State alleging that the State had been negligent in failing to erect signs or other safety devices “warning of the heavy fog condition which existed at the site of the accident”. The claim stated that claimant was involved in an automobile accident on State Route 17 on November 11, 1983 at about 1:05 p.m. The claim also asserted that the State was aware of the fog condition. The State’s motion to dismiss the claim for failure to state a cause of action was granted. This appeal followed. The order of the Court of Claims should be affirmed. The claim alleges that the accident was caused by the presence of a heavy fog. The State is not an insurer for people who choose to proceed through fog on otherwise safe roads (Johnson v State of New York, 104 Misc 395, 403, affd 186 App Div 389, affd 227 NY 610; see, Elansky v State of New York, 133 Misc 331, affd 226 App Div 713). Further, the State does not have a duty to warn of a transitory natural condition which can be readily observed by the senses (see, Olsen v State of New York, 30 AD2d 759, affd 25 NY2d 665). This accident occurred at 1:05 p.m. and it is not alleged that claimant did not see the fog ahead. The instant factual situation is readily distinguishable from that found in Rindfleisch v State of New York (27 NY2d 762): and claimant’s reliance on Rindfleisch is misplaced. Order affirmed, without costs. Casey, J. P., Weiss, Mikoll, Levine and Harvey, JJ., concur.