In Toyos v. City of New York, 304 A.D.2d 319, 758 N.Y.S.2d 19 [1st Dept 2003] the First Department held the negligence of the City of New York (failure to provide a roadway, shoulder or turnouts) was not superceded by plaintiff's attempt to change a flat tire in the middle of the highway, nor was it superceded by the negligence of a driver of a vehicle which crashed into plaintiff's disabled vehicle. In Toyos the Court (at 320) reiterated that "an intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent."