Ryan v. Ratchuk

221 A.D.2d 1021, 635 N.Y.S.2d 378

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment in favor of third-party defendant, Lorraine Stegura. The evidence is uncontroverted that plaintiff, while riding a bicycle, was cut off by a vehicle, causing him to cross over into Stegura’s lane of traffic, and to collide with Stegura’s vehicle. By establishing that the head-on collision was caused solely by plaintiff having crossed over into her lane of traffic, Stegura established a complete defense to the third-party action, which sought damages for injuries arising out of the collision (see, Moshier v Phoenix Cent. School Dist., 199 AD2d 1019, affd 83 NY2d 947). In response, defendant-third-party plaintiff, Dennis Ratchuk, failed to offer any proof in admissible form that Stegura could have done anything to avoid the collision (see, Moshier v Phoenix Cent. School Dist., supra; see also, Gouchie v Gill, 198 AD2d 862).

The court properly denied Ratchuk’s motion for summary judgment dismissing plaintiffs complaint. A material issue of fact exists whether Ratchuk’s vehicle was involved in the accident.

Finally, the court did not abuse its discretion by refusing to impose costs, attorneys’ fees and sanctions against Ratchuk, and we decline to do so. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.—Summary Judgment.) Present— Green, J. P., Lawton, Fallon, Doerr and Balio, JJ.