Salisbury v Christian

[*1] Salisbury v Christian 2006 NY Slip Op 50602(U) [11 Misc 3d 1077(A)] Decided on January 5, 2006 Supreme Court, Onondaga County Centra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 5, 2006
Supreme Court, Onondaga County

Stephen D. Salisbury, Jr. and CHRISTINE K. DANNIBLE, Plaintiffs,

against

Jonelle K. Christian and ANTHONY M. CHRISTIAN, Defendants.



04-6424



Anthony S. Bottar, Esq.

Cherundolo, Bottar & Leone, PLLC

Attorneys for Plaintiffs

AXA Tower II, Suite 1600

Syracuse, NY 13202

Megan H. Eshbaugh, Esq.

Sugarman Law Firm, LLP

Attorneys for Defendants

360 S. Warren St., 5th Floor

Syracuse, NY 13202-2680

John V. Centra, J.

Plaintiff brought an application before this court seeking consolidation of the two above-referenced matters. Defendants do not oppose plaintiffs' motion for consolidation. In addition, plaintiffs have moved for partial summary judgment on liability and an order dismissing defendant's first, second, fourth, fifth, and sixth affirmative defenses in the action against Christian and defendant's first, second, third, fifth, sixth, and seventh affirmative defenses in the action against [*2]Central National Bank. With respect to the action against Christian, defendants do not oppose dismissal of the fourth and fifth affirmative defenses. With regard to the action against Central National Bank, defendants do not oppose dismissal of the sixth affirmative defense.

Plaintiffs were on a motorcycle driven by plaintiff Stephen Salisbury and stopped at a red light. They allege that, without warning, an automobile operated by defendant Jonelle Christian, owned by defendant Central National Bank, and leased to defendant Anthony Christian, rear-ended the motorcycle. They argue that Jonelle Christian failed to offer a non-negligent explanation for the collision. Plaintiffs claim that they were ejected from the motorcycle and sustained serious injuries, and, therefore, are entitled to summary judgment on the issue of liability.

At her deposition, Jonelle Christian testified that the traffic light where the accident occurred was green before and leading up to the actual collision. She further testified that she never saw the motorcycle in front of her until just before the collision.

Although Plaintiffs have alleged they were stopped at a red light, defendant stated that the light was green before and right up to the accident time. Defendants argue that because there is a discrepancy as to the color of the light, there is a question of fact that requires denial of the motion for summary judgment. They also argue that Jonelle Christian never saw the motorcycle in front of her until just before the collision, and when she first saw it, it was very close to the fog line of the road in front of her, and that she did not see a taillight on the motorcycle. Plaintiff Salisbury testified in his deposition that his taillights were operational and on at the time of the accident.

Jonelle Christian testified at her depositions that prior to the accident, she looked over to see her friend, a driver in a car next to her. Her friend testified that she looked over to Jonelle Christian and must have waved goodby to her just before the accident.

"[A] rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle". Scholze v. Washington, 11 AD3d 991 (4th Dept. 2004). It "imposes a duty on him or her to explain how the accident occurred". Mendiolaza v. Novinski, 268 AD2d 462 (2nd Dept. 2000). In addition, "when the driver of an automobile approaches another [vehicle] from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle". Chepel v. Meyers, 306 AD2d 235, 236 (2nd Dept. 2003); Vehicle and Traffic Law § 1129(a).

Plaintiffs have established a prima facie case of negligence by their sworn statements that their motorcycle was stopped at a red light when they were rear-ended by defendant's vehicle. Although Jonelle Christian contends that the light was green, regardless of the color of the light, there is no question that the motorcycle was in front of Christian and that she struck it from behind.

This court finds that Jonelle Christian has not provided a non-negligent basis for the accident. Accordingly, this court grants plaintiffs' motion for partial summary judgment on the issue of negligence only. Plaintiffs' motion to dismiss the first, second, fourth and fifth affirmative defenses in the action against Christian is granted and plaintiffs' motion to dismiss the first, second, third, fifth, and sixth affirmative defenses in the action against Central National Bank is granted.

Plaintiffs are to submit an order on notice.

JOHN V. CENTRA [*3]

Supreme Court Justice

Dated:January 5, 2006

Syracuse, New York