Sheffer v. Critoph

• Decision Date: 30 December 2004
• Docket Number: CA 04-01351.
• Citation: 2004 NY Slip Op 09933,13 A.D.3d 1185,787 N.Y.S.2d 584
• Parties: RONALD T. SHEFFER, SR., Respondent, v. CHRISTOPHER H. CRITOPH et al., Appellants, and RONALD T. SHEFFER, JR., et al., Respondents. (Action No. 1.) RONALD T. SHEFFER, JR., Respondent, v. CHRISTOPHER H. CRITOPH et al., Appellants. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 1185

787 N.Y.S.2d 584

2004 NY Slip Op 09933

RONALD T. SHEFFER, SR., Respondent, v. CHRISTOPHER H. CRITOPH et al., Appellants, and RONALD T. SHEFFER, JR., et al., Respondents. (Action No. 1.)

RONALD T. SHEFFER, JR., Respondent, v. CHRISTOPHER H. CRITOPH et al., Appellants. (Action No. 2.)

CA 04-01351.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 30, 2004.

Appeals from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered March 17, 2004. The order denied the motion of defendants Christopher H. Critoph and Harold C. Critoph, Inc. for summary judgment dismissing the complaints against them and the cross motion of defendants Melissa Johnson, Edith Rice and James Rice for summary judgment dismissing the complaints against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

The plaintiffs in action Nos. 1 and 2 (hereafter, Sheffer, Sr. and Sheffer, Jr.) commenced their respective actions seeking damages for injuries they sustained when the vehicle driven by Sheffer, Jr. in which Sheffer, Sr. was a passenger was involved in a collision. According to plaintiffs, a vehicle owned by defendants Edith Rice and James Rice and driven by defendant Melissa Johnson (collectively, Rice defendants) precipitated the collision between the Sheffer vehicle and a vehicle owned by defendant Harold C. Critoph, Inc. and driven by defendant Christopher H. Critoph (collectively, Critoph defendants). In addition, Sheffer, Sr. named his son and his son's wife as defendants in action No. 1.

Supreme Court properly denied the motion of the Critoph defendants and the cross motion of the Rice defendants for summary judgment dismissing the complaint in each action against them. With respect to the Critoph defendants, they submitted the deposition testimony of Sheffer, Jr. in support of their motion. Sheffer, Jr. testified therein that, although his vehicle rear-ended the Critoph vehicle, the Critoph vehicle was stopped in the driving lane of traffic at night without any lights illuminating the vehicle, in violation of Vehicle and Traffic Law § 1163. Thus, the deposition testimony of Sheffer, Jr. provided a non-negligent explanation for his rear-end collision of the Critoph vehicle, requiring denial of the motion of the Critoph defendants (see generally Ruzycki v Baker, 301 AD2d 48, 49 [2002]; Pitchure v Kandefer Plumbing & Heating, 273 AD2d 790 [2000]).

In support of their cross motion, the Rice defendants submitted the deposition testimony of Johnson in which she admitted that, when she entered East Eden Road, the road on which the Sheffer and Critoph vehicles were already traveling, she was unable to make a right-hand turn into the driveway of her home because of the icy condition of the road. She further admitted that she immediately turned into the first driveway she observed on the left and that her vehicle slid as she entered the driveway. Johnson testified that the collision occurred when she...