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May 3, 2004.

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. pps. 33-35).

  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, 47, 52).

  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 parties.

  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 motion.

  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 ...

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