United States District Court, N.D. New York
May 3, 2004.
CHARLES M. STRICK, Plaintiff,
FRANCOIS FOISY and 3091-2687 QUEBEC INC., Defendants; FRANCOIS FOISY and 3091-2687 QUEBEC, INC., Third Party Plaintiffs, v. VADIM CRUCHININ, Third Party Defendant
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
This diversity action arose from an automotive accident on March 14,
1998, involving vehicles driven by the plaintiff Charles M. Strick, the
defendants third party plaintiffs Francois Foisy and 3091-2687 Quebec,
Inc., and the third party defendant Vadmin Cruchinin.
On the date of the accident, third party defendant Cruchinin was
operating his automobile in a northerly direction on The New York State
Thruway ("1-87") between Exits 18 and 19. A light snow had become heavier
and had covered the road surface. He was driving in the right lane when
an overtaking car in the left lane, traveling very rapidly for the
weather and road conditions, swerved very close to his car, Thereupon,
Chuchinin then steered his car to the right, away from the approaching
car, however, his car started pulling to the right on to the road
shoulder. He turned left to compensate the pulling action, but this
caused the car to skid across both traffic lanes onto the left shoulder
and scrap the concrete median divider. The car then spun around 180
degrees and coming to rest facing south with its right side against the
concrete divider. (Cruchinin Dep., pp. 7, 8, 1-13, 18-21).
Chuchinin exited his car to inspect its damages and found that it had
only received some minor dents and scrapes on the left side. While
standing outside of his car, he observed a vehicle being driven by
plaintiff Strick skidding in his direction. This vehicle lightly
contacted the left front bumper of Cruchinin's car inflicting negligible damage, and
halted. Cruchinin began to walk toward the Strick vehicle when he saw
that an approaching tractor-trailer driven by defendant Foisy was weaving
while moving at a relatively fast rate of speed. He immediately ran
across the roadway and vaulted over the guardrail on the other side of
the highway. He heard an impact, turned and discerned that the
tractor-trailer had struck his car as well as the Strick vehicle. During
and after the impact, the tractor-trailer remained facing north and
eventually stopped on the highway past both of the struck automobiles in
the median. (Cruchinin Dep. pp. 27-29, 32)
Cruchinin then re-crossed the highway to where the two automobiles were
situated and saw that both had been heavily damaged. He also looked into
the Strick car and ascertained that all of its passengers were
unconscious and apparently lost a significant amount of blood. He then
call 911 on his cell phone as other vehicles had stopped to offer
assistance. Medical and law enforcement personnel sonn were on the
acident scene and caried out their respective duties, (Chuchinin Dep.
Traveling north on 1-87 shortly behind Cruchinin at the time and
location were plaintiff Strick and defendant and third party plaintiff
Foissy. Strick was proceeding Foisy when his car lost control, slid off
the highway into the median, scraped the divider guardrail and came to
rest behind Cruchinin vehicle.
In his deposition, plaintiff Strick states that he was driving his
automobile north on 1-87 during a heavy snow that was falling at the time
and had covered the road surface with a layer of snow. He was traveling
about 50 miles per hour when he lost control of the car and it slid off
the highway to the left into the center median, struck the metal divider
rail and stopped. From the moment he began to lose control of his car until it came to a
stop, he did not notice any other out of control vehicles in the
northbound lanes of I-87. In fact, he didn't notice any traffic at all on
that portion of the northbound highway. (Strick Dep. p. 18, 23).
Foisy was operating his tractor trailer, and approaching the site where
the Strick and Cruchinin vehicles were in the median, when he felt his
trailer sway, and thinking it might jackknife, he attempted to slow his
truck down by pushing it along the right shoulder's metal guard rail. He
then moved to the left and the trailer moved sideways and "all of a
sudden something let go." (Foisy Dep. p. 35). He brought his truck to a
stop on the highway shortly beyond the vehicles in the median.
In his deposition testimony, Foisy states that just prior to the
accident, he was operating his truck between 55 and 60 miles per hour, a
heavy snow was falling covering the road way with one to one and a half
inches of snow. (Foisy Dep. pp. 32, 33). He saw three cars spinning in
front of him and felt his empty trailer swaying, and fearing that it
might jackknife, attempted to slow the truck down by pushing it along the
right shoulder's metal guard rail. He then moved back to the left and two
of the cars continued to drive on, and the third went into the median.
The trailer then started to go sideways and all of a sudden something let
go and the truck and trailer swung to the left where he stopped the rig
on the left side of the highway. He didn't know if a car hit his trailer
or not, and he did not see any cars in the median. (Foisy Dep. pp. 35,
Foisy claimed that his truck did not hit any other vehicle but another
vehicle may have hit his truck. (Foisy Dep. p.47). However, as previously
indicated, third party defendant Cruchinin stated in his deposition
testimony that after he crossed the highway when he saw Foisy's truck rapidly approaching the median, he heard and saw
Foisy's truck impact the two vehicles in the median. (Cruchinin Dep.
p.29). The police officer who investigated the accident at the scene also
advised Foisy that he had hit a car; subsequently, he found a damaged
area at the rear wheels of the trailer, and concluded that plaintiffs car
had gone between the trailer's two rear wheels. (Foisy Dep. p. 47).
This action was instituted by the filing of a summons and complaint by
plaintiff Strick against defendants Foisy and 3091-2687 Quebec, Inc. in
February 2001. Issue was joined by the defendants and they then filed a
third-party complaint against third-party defendant Cruchinin. During
discovery in this case, depositions were taken of all the individual
Currently before the court is third-party defendant Cruchinin's motion
pursuant to Federal Rule of Civil Procedure 56 for summary judgment
dismissing the complaint as to himself. Defendants Third Party
Plaintiffs Foisy and 3091-2687 Quebec, Inc. have entered opposition to
This court sitting in a diversity case must apply state substantive law
and federal procedural law. Eire R.R. v. Tompkins, 304 U.S. 64,
78, 58 S.Ct. 817, 822, 82 L.Ed.2d 1188 (1938).
Rule 56 allows for summary judgment where the evidence demonstrates
that "there is no genuine issue of any material fact and the moving party
is entitled to judgment as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). Summary judgment is properly regarded . . . as an integral part
of the Federal Rules as a whole, which are designed to "secure the just, speedy and
inexpensive determination of every action." Celotex Corp. v.
Catreet, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986)(quoting Fed.R.Civ.P.1). In determining whether there is a genuine
issue of material fact, a court must resolve all ambiguities and draw
inferences against the moving party. United States v. Diebold,
369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)(per
curiam). An issue of credibility is insufficient to preclude the
granting of a motion for summary judgment. Neither side can rely on
conclusory allegations or statements in affidavits. The disputed issues
of fact must be supported by evidence that "could not lead a rational
trier of fact to find for the non-moving party." Mashusita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nor will factual disputes that are
irrelevant to the disposition of the suit under governing law preclude
any entry of summary judgment. Anderson, 477 U.S. at 247, 106
S.Ct. at 2505.
A plaintiff may not avoid summary judgment by simply declaring that
state of mind is at issue. Meire v. Dacon, 759 F.2d 989, 998
(2d Cir. 1985) ("[t]he summary judgment rule would be rendered
sterile . . . if the mere incantation of intent or state of mind would
act as a talisman to defeat an otherwise valid motion.").
The unverified Third Party Complaint alleges that, at approximately
8:30 a.m. on March 14, 1998, that plaintiff Strick saw third party
defendant Cruchinin's car in front of him on the highway, watched it as
it started to skid across the highway into the median, and, in attempting
to avoid it, lost control of his vehicle skidding into the median and
thereupon came in contact with defendants' and third party plaintiffs'
These allegations are negated by plaintiff Strick's own testimony that
just prior to skidding into the median, he had been following a car about five
car lengths in front of him for quite some time, and when his vehicle
began to skid, the other car kept on going straight and did not appear to
be out of control. (Strick Dep. p. 22). Plaintiff further avers that at
the moment his car began to lose control, he did not notice any other
northbound vehicles either in or out of control traveling on the
northbound lanes of I-87. (Strick Dep. p. 23).
In his reply affidavit to Cruchinin's summary judgment motion, third
party plaintiff's attorney states at paragraph 21 "[b]ased on the speed
at which the Strick vehicle was moving as it began to lose control, a
jury could reasonably determine that the plaintiff struck the guard rail
or the Cruchinin vehicle with sufficient force to cause his injuries."
This speculation is clearly refuted by the plaintiffs following
deposition testimony which describes in detail what happened once his
vehicle came to a stop in the median:
Q. Can you describe for me what you did after
your car came to rest in the median.
A. The first thing I did was, I opened the
window on the driver's side to look out the
side to see how much damage there was to my
car, and it looked negligible. So then I
closed the window, took off my seat belt and
climbed into the back seat to comfort my
children who were shaken up from the
swerving. And I told them that everything
was okay, we just slid off the road and
we're going to get going in a moment. And at
some point after comforting them and
climbing back to the front seat, there was
an impact to my car.
(Strick Dep. pp. 23-24).
Liability based upon occurrences such as in this case is limited by the
doctrine of proximate cause, applied by declining to trace a series of
events beyond a certain point, under the reasoning that the event merely furnished the occasion of
condition for the occurrence of the further event, but did not "cause"
it. Ventricelli v. Kinney Car System Rent a Car, Inc.,
45 N.Y.2d 950, 411 N.Y.S.2d 555 (1978).
The burden of proof in this action is on the third party plaintiffs to
produce evidence of negligence, it cannot be inferred from the mere fact
that an automobile skidded or that an accident happened, nor can it be
established by guess, speculation or surmise. Abbott v. St. Luke's
Memorial Hospital Center, 38 A.D.2d 176.327 N.Y.S.2d 799 (4th Dept.
1972). The third party plaintiffs' theorization and conjecture concerning
the culpability of third party defendant Cruchinin is insufficient to
meet that burden.
The deposition evidence has established that Cruchinin proceeded Strick
into median, and that plaintiff, after his car lost control and slid into
the median and stopped after either not hitting or lightly contacting the
Churchinin car's front bumper. No one in the Strick family was injured
until their automobile was struck from the rear by the Foisy vehicle
shortly thereafter. Chamberlain v. Suffolk County Labor
Department, 221 A.D.2d 580, 581, 634 N.Y.S.2d 202 (2d Dept. 1995).
Whether Strick's car came into contact with the Cruchinin automobile
before being struck in the rear by the Foisy vehicle was not a proximate
cause of the the Strick family's injuries. Burnazos v.
Malifitano, 275 A.D.2d 437, 438, 713 N.Y.S.2d 75 (2d Dept. 2000).
Under the circumstances of this case, any purported negligence by
Cruchinin was not a proximate cause of the injuries to plaintiff and his
family. Elezovic v. Harrison, 292 A.D.2d 416, 417, 739 N.Y.S.2d 410
(2002), or a proximate cause of the rear-end collision between
Foisy's truck and the plaintiff's automobile. McNeill v.
Sandiford, 279 A.D.2d 467, 75 N.Y.S.2d 610 (2000).
Accordingly, third party plaintiffs summary judgment motion is
GRANTED and the third party complaint is DISMISSED.
IT IS SO ORDERED.
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