Appollonia v. Bonse

• Decision Date: 23 February 2012
• Citation: 2012 N.Y. Slip Op. 01398,938 N.Y.S.2d 668,92 A.D.3d 1170
• Parties: Cassandra APPOLLONIA et al., Appellants, v. Augustus W. BONSE III et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01398
92 A.D.3d 1170
938 N.Y.S.2d 668

Cassandra APPOLLONIA et al., Appellants,
v.
Augustus W. BONSE III et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 23, 2012.

[938 N.Y.S.2d 668]

Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (Daniel G. Heppner of counsel), for appellants.

Office of Theresa J. Puleo, Albany (Norah M. Murphy of counsel), for respondents.

[938 N.Y.S.2d 669]

Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

[92 A.D.3d 1170] Appeal from an order of the Supreme Court (Melkonian, J.), entered January 19, 2011 in Ulster County, which granted defendants' motion for summary judgment dismissing the complaint.

On May 28, 2008, shortly after failing his motorcycle road test and while operating under an expired motorcycle learner's permit, plaintiff Thomas M. Appollonia climbed aboard his Kawasaki motorcycle and headed north on Wilbur Avenue in the City of Kingston, Ulster County. As Appollonia, who lived on Wilbur Avenue, came through an “S” curve in the road, he spotted a vehicle owned by defendant Augustus W. Bonse and operated by defendant Augustus W. Bonse III (hereinafter Bonse) stopped in the northbound lane at the intersection of Wilbur Avenue and Gilead Street. By his own admission, Appollonia “didn't know what to do,” “panicked” and hit the brake, causing the bike to become “squirrelly” and “wobbly.” Appollonia then released the brake but, before he could regain control of the bike, struck the rear of Bonse's vehicle, causing him to somersault over the handlebars and land in the road sustaining various injuries.

Appollonia and his spouse, derivatively, thereafter commenced [92 A.D.3d 1171] this action against defendants seeking to recover for the injuries sustained in the accident. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court granted defendants' motion and this appeal ensued.

We affirm. “When approaching another vehicle from behind, a driver is required to maintain a reasonably safe rate of speed, maintain control of [his or her] vehicle and use reasonable care to avoid colliding with the other [vehicle]” ( Gray v. Delaware Equip. Servs., Inc., 56 A.D.3d 1006, 1007, 869 N.Y.S.2d 230 [2008] [internal quotation marks and citations omitted]; see Barile v. Lazzarini, 222 A.D.2d 635, 637, 635 N.Y.S.2d 694 [1995] ), which necessarily includes “a duty to maintain a safe...