Stewart v. Ellison

• Decision Date: 11 April 2006
• Docket Number: 8175.
• Citation: 813 N.Y.S.2d 397,2006 NY Slip Op 02642,28 A.D.3d 252
• Parties: CHERYL STEWART, Appellant, v. VERONICA ELLISON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

28 A.D.3d 252

813 N.Y.S.2d 397

2006 NY Slip Op 02642

CHERYL STEWART, Appellant, v. VERONICA ELLISON et al., Respondents.

8175.

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

April 11, 2006.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 9, 2005, granting the Ellison defendants' motion

and defendant Ford Credit Titling Trust Co.'s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs or disbursements, the motion and cross motion denied, and the complaint reinstated as against all defendants.

On July 5, 2002, at approximately 1:30 P.M., plaintiff claims to have been operating her motorcycle in the right northbound lane on the FDR Drive. Defendant Glenn E. Ellison was operating a vehicle leased from codefendant Ford Credit Titling Trust Co. northbound in the center lane approximately 30 yards behind plaintiff. A saddlebag fastened to the motorcycle's back seat by bungee cords apparently became caught in the motorcycle's rear wheel, causing the motorcycle to skid. The Ellison vehicle collided with the motorcycle, striking plaintiff's left ankle and causing her to sustain a compound fracture. According to the police report, plaintiff told the responding officer that after her saddlebag became caught in the rear wheel, the wheel locked up, causing the motorcycle to skid "out of control." A diagram of the location of the respective vehicles after the collision showed the motorcycle to be in the center lane.

At her deposition, plaintiff testified that she was traveling 40 miles per hour before the accident, and that after her saddlebag became enmeshed in the rear wheel, the motorcycle began to skid toward the left with only the forward half of the front wheel crossing over into the center lane at the time of impact. According to plaintiff, she skidded for approximately 15 to 20 seconds and no other portion of the motorcycle crossed over the line separating the right from the center lane. In fact, plaintiff claims, the motorcycle's left foot peg remained in the right lane of travel and the motorcycle was still skidding when it was struck. Ellison testified that the motorcycle was 10 to 15 yards ahead of his vehicle when it began to skid and he noticed smoke emitting from its rear tire. He immediately braked his vehicle and slowed down. Ten seconds had elapsed from the beginning of the motorcycle's skid to the time of impact. The motorcycle "sort of wiggled, waggled and came...