Opinion
803 CA 21-01169
12-23-2022
William C. RICK, Plaintiff-Respondent, v. Wayne H. TECULVER and Capri M. TeCulver, Individually, and as Co -Administrators of the Estate of Matthew R. TeCulver, Deceased, and Trevor S. Bayle, Defendants-Appellants.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (RICHARD J. ZIELINSKI OF COUNSEL), FOR DEFENDANTS-APPELLANTS. ROBBINS & JOHNSON, P.C., JAMESTOWN, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (RICHARD J. ZIELINSKI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROBBINS & JOHNSON, P.C., JAMESTOWN, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when his snowmobile collided with a snowmobile operated by Matthew R. TeCulver (decedent) and owned by defendant Trevor S. Bayle. At the time of the collision, plaintiff and another snowmobile driver were traveling north along a snowmobile trail, while decedent, Bayle, and another driver (decedent's group) were traveling south along the same path. The collision happened as the two groups converged along a straight, flat portion of the trail. Although the parties dispute the particulars of the collision, there is no dispute that decedent was traveling on the right side of the snowmobile trail, whereas plaintiff moved his snowmobile to the left, eventually entering decedent's lane of travel. Defendants moved for, inter alia, summary judgment dismissing the complaint. Supreme Court denied the motion. Defendants appeal, and we affirm.
We conclude that defendants failed to meet their initial burden on the motion inasmuch as their own submissions raised triable issues of fact whether decedent and Bayle were negligent (see Ebbole v. Nagy , 169 A.D.3d 1461, 1462, 92 N.Y.S.3d 526 [4th Dept. 2019] ; Pagels v. Mullen , 167 A.D.3d 185, 187, 88 N.Y.S.3d 727 [4th Dept. 2018] ). Although defendants submitted deposition testimony establishing that the accident occurred after plaintiff veered to the left into decedent's lane of travel (see generally Shanahan v. Mackowiak , 111 A.D.3d 1328, 1329, 974 N.Y.S.2d 710 [4th Dept. 2013] ; Clough v. Szymanski , 26 A.D.3d 894, 895, 809 N.Y.S.2d 707 [4th Dept. 2006] ), defendants’ submissions failed to eliminate all questions of fact with respect to the negligence of decedent and Bayle because the submissions contained evidence that decedent and Bayle were traveling at an unsafe speed at the time of the collision (see Moore v. Curtiss , 129 A.D.3d 1504, 1505, 11 N.Y.S.3d 379 [4th Dept. 2015] ; see generally Haider v. Zadrozny , 61 A.D.3d 1077, 1078, 876 N.Y.S.2d 215 [3d Dept. 2009] ; Pinkow v. Herfield , 264 A.D.2d 356, 358, 695 N.Y.S.2d 20 [1st Dept. 1999] ). Indeed, there also was evidence that decedent's group had been drag racing, three abreast, along the trail, which raised "factual questions concerning the reasonableness of [decedent's and Bayle's] actions under the circumstances [and] whether [decedent] could have done something to avoid the collision" ( Haider , 61 A.D.3d at 1078, 876 N.Y.S.2d 215 [internal quotation marks omitted]; see generally Halbina v. Brege , 41 A.D.3d 1218, 1219, 838 N.Y.S.2d 288 [4th Dept. 2007] ; Acovangelo v. Brundage , 271 A.D.2d 885, 887, 706 N.Y.S.2d 757 [3d Dept. 2000] ). Because defendants failed to meet their initial burden on the motion, the burden never shifted to plaintiff, and denial of the motion "was required ‘regardless of the sufficiency of the opposing papers’ " ( Scruton v. Acro-Fab Ltd. , 144 A.D.3d 1502, 1503, 40 N.Y.S.3d 864 [4th Dept. 2016], quoting Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Smith v. Szpilewski , 139 A.D.3d 1342, 1343, 32 N.Y.S.3d 393 [4th Dept. 2016] ).
We reject defendants’ further contention that the court erred to the extent that it concluded that an issue of fact exists concerning whether plaintiff was negligent.