Eisenbach v. Rogers
| Decision Date | 01 February 1990 |
| Citation | 158 A.D.2d 792,551 N.Y.S.2d 385 |
| Parties | Frederick E. EISENBACH et al., Appellants, v. Margaret F. ROGERS, Defendant, and Bertrand K. Burr et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ward W. Ingalsbe, Jr., Kingston, for appellants.
Cook, Tucker, Netter & Cloonan, P.C. (Eric M. Kurtz, of counsel), Kingston, for respondents.
Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.
Appeal from an order of the Supreme Court (Torraca, J.), entered December 2, 1988 in Ulster County, which granted a motion by defendants Bertrand K. Burr and Central Hudson Gas and Electric Corporation for summary judgment dismissing the complaint against them.
This action arises out of a collision between a vehicle driven by plaintiff Frederick E. Eisenbach (hereinafter plaintiff) and a vehicle owned by defendant Central Hudson Gas and Electric Corporation and operated by defendant Bertrand K. Burr (hereinafter collectively referred to as defendants). The accident occurred at or near the crest of a hill on State Route 32 in Ulster County when plaintiff, traveling southbound, lost control of his vehicle and swerved sharply into the northbound lane where he collided with Burr. The evidence indicates that plaintiff lost control as a result of being forced into the western shoulder of the roadway by a car allegedly driven by defendant Margaret F. Rogers, which was heading north in plaintiff's southbound lane.
Ronald Smith, a nonparty witness who was traveling north at the time of the accident, provided a sworn statement describing the events leading up to the accident. Smith averred that as he reached the crest of the hill he was passed on the left by a vehicle heading north in the southbound lane and that this vehicle forced plaintiff off the road. Looking in his rearview mirror, Smith saw plaintiff come back onto the roadway and veer into the northbound lane. Smith then followed the car that had passed him and reported the license number to the police.
Following pretrial discovery, defendants moved for summary judgment dismissing the complaint against them. In support of the motion, Burr submitted portions of his own testimony at an examination before trial (hereinafter EBT) and also excerpts of plaintiff's and Rogers' EBT testimony, the police accident report and the sworn statement of Smith. The evidence shows that in the vicinity of where the accident occurred there is a single southbound lane and two northbound lanes heading up the hill which merge into one lane at or near the crest of the hill. Burr's EBT testimony indicates that he was traveling up the hill at a lawful speed in a northbound lane when, as he approached the crest of the hill, he observed plaintiff's car just as it veered directly across the road toward him. Burr testified that he responded by slamming on his brakes but he could not avoid colliding with plaintiff's vehicle. The foregoing evidence prima facie established a complete defense to plaintiff's action, i.e., that plaintiff's vehicle suddenly careened into the lane where Burr was lawfully driving and there was nothing he could have done to avoid the collision (see, Stinehour v. Kortright, 157 A.D.2d 899, 550 N.Y.S.2d 169 [1990]; Morowitz v. Naughton, 150 A.D.2d 536, 537, 541 N.Y.S.2d 122). Therefore, it was...
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...on the defendant's part, summary judgment must be granted in favor of the defendant. See, e.g., Eisenbach v. Rogers, 158 A.D.2d 792, 551 N.Y.S.2d 385, 386 (App.Div.3d Dep't 1990); Morowitz v. Naughton, 150 A.D.2d 536, 541 N.Y.S.2d 122, 124 (App.Div.2d Dep't 1989); Viegas v. Esposito, 135 A.......
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