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STRICK v. FOISY

United States District Court, N.D. New York


May 3, 2004.

CHARLES M. STRICK, Plaintiff,
v.
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

BACKGROUND

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 S.Ct. 817, 822, 82 L.Ed.2d 1188 (1938).

  DISCUSSION

  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' tractor trailer.

  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.

20040503

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