                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 6, 2014                    517709
________________________________

MATTHEW HATHAWAY,
                     Appellant,
     v
                                             MEMORANDUM AND ORDER
BRIAN EASTMAN et al.,
                    Respondents,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                              __________


      Stanley Law Offices, Syracuse (H.J. Hubert of counsel), for
appellant.

      Levene Gouldin & Thompson, Vestal (Lauren K. Saleeby of
counsel), for Brian Eastman, respondent.

      Petrone & Petrone, PC, Utica (Mark J. Halpin II of
counsel), for Rachel Raymond, respondent.

      Leonard & Van Donsel, Cortland (Richard V. Van Donsel of
counsel), for Frank Eastman II, respondent.

      Hiscock & Barclay, LLP, Syracuse (Robert A. Barrer of
counsel), for Tyler Eaton, respondent.

      Law Office of Keith Miller, Liverpool (Keith D. Miller of
counsel), for Nicholas Rotchford, respondent.

                              __________
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Lahtinen, J.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered June 21, 2013 in Cortland County, which, among other
things, granted certain defendants' motions for summary judgment
dismissing the complaint against them.

      On July 5, 2008, plaintiff sustained serious injuries when
the 1982 Chevrolet truck in which he was a passenger was involved
in an accident on Cold Brook Road in the Town of Scott, Cortland
County. According to plaintiff, the truck was one of three
vehicles that were drag racing, reaching speeds in excess of 100
miles per hour on Cold Brook Road, a two-lane rural road with a
speed limit of 55 miles per hour. Plaintiff recalled that, prior
to the race, a group of primarily young adults, many of whom were
consuming beer, had been bantering for about 20 minutes regarding
who had the fastest vehicle. At about 10:40 p.m., 19-year-old
plaintiff and 17-year-old defendant Rachel Raymond entered as
passengers in the truck driven by 19-year-old defendant Brian
Eastman (hereinafter Eastman) knowing that Eastman was about to
embark on a race.

      Eastman planned to race against a 1966 Chrysler owned by
his uncle, defendant Frank Eastman II, which was operated by
defendant Vincent Losaw with passengers Frank Eastman and
defendant Tyler Eaton. A third vehicle operated by defendant
Nicholas Rotchford joined the race according to plaintiff.
Plaintiff testified at his deposition that during the race he
stated to Eastman that Losaw was beating him and that he was
letting Losaw win. Eastman then increased his speed and, shortly
thereafter, lost control of the truck going off the road into a
ditch and eventually striking a tree.

      Plaintiff commenced this action against the three drivers
as well as the passengers of the vehicles involved in the race
that night. Losaw defaulted, but the remaining defendants
eventually moved for summary judgment dismissing the complaint.
Plaintiff opposed the motions and also made a cross motion.
Supreme Court, among other things, granted defendants' motions,
finding that "plaintiff's own testimony establishes that he
knowingly and willingly participated in the illegal act of aiding
                              -3-                517709

or abetting the drag race, precluding him from recovery for the
injuries that he sustained in the resulting accident" (40 Misc 3d
707, 712 [2013]). Plaintiff appeals.

      "[A]s a matter of public policy, . . . where a plaintiff
has engaged in unlawful conduct, the courts will not entertain
suit if the plaintiff's conduct constitutes a serious violation
of the law and the injuries for which the plaintiff seeks
recovery are the direct result of that violation" (Manning v
Brown, 91 NY2d 116, 120 [1997]; see Barker v Kallash, 63 NY2d 19,
24 [1984]; Wolfe v Hatch, 95 AD3d 1394, 1395-1396 [2012]; La Page
v Smith, 166 AD2d 831, 832 [1990], lv denied 78 NY2d 855 [1991]).
Plaintiff urges that this rule of law is inapplicable because he
was merely a passenger and also because some of the defendants
indicated during disclosure that they did not consider themselves
to be racing. As for the latter argument, plaintiff controls the
theory of his case and he has not wavered from his contention
that a high-speed drag race was in progress – an allegation made
in his complaint, bills of particulars, proposed amended
complaint, affidavits submitted in the underlying motions and
about which he testified in detail at his deposition. Supreme
Court did not err in accepting plaintiff's admitted conduct in
such regard (see generally Ribaudo v Delaney Constr. Corp., 44
AD3d 1143, 1144-1145 [2007]; Sutton v Eastern N.Y. Youth Soccer
Assn., Inc., 8 AD3d 855, 857 [2004]; Rucci v Cooper Indus., 300
AD2d 1078, 1079 [2002]).

      The fact that a plaintiff's injuries occurred in the course
of unlawful conduct does not mandate dismissal (see Barker v
Kallash, 63 NY2d at 25), but instead the violation of law must be
"sufficiently serious" to support such an extreme result, and
this determination necessarily implicates "due consideration of
all the relevant facts and circumstances" (Wolfe v Hatch, 95 AD3d
at 1396). Here, plaintiff testified that he knew Eastman had
been drinking beer all day, plaintiff participated in banter
regarding racing and he vouched for Eastman's truck as the
fastest. Plaintiff stated that he entered the truck knowing a
race was about to start, the truck and the vehicle driven by
Losaw revved engines at a starting point on the road with yelling
back and forth, and plaintiff never suggested that Eastman not
proceed to race. In fact, once the race started, he even made
                              -4-                517709

comments urging Eastman to go faster so as not to be defeated in
the race. Shortly thereafter, Eastman lost control of the truck.
Estimated speeds during the race exceeded 100 miles per hour.
Plaintiff was very familiar with the road, acknowledged racing on
it previously and described it as "pretty curvy," "surface isn't
even," "potholes, bumps" and "not much shoulder."

      Racing side by side at over 100 miles per hour in the dark
on a two-lane rural road under the circumstances of this case
constitutes the type of grossly reckless conduct that created a
grave risk to the public (see Manning v Brown, 91 NY2d at 122;
La Page v Smith, 166 AD2d at 833). As tragic as this accident
was, the conduct herein created a situation that could have
easily resulted in additional individuals being seriously injured
or killed, including people innocently driving on the road.
Plaintiff was an adult who had previously driven in a race on
this same section of road. Although his status as a passenger is
certainly a relevant consideration, it is not dispositive (see
Manning v Brown, 91 NY2d at 119). Significantly, plaintiff
admitted encouraging the race to take place, entering the truck
knowing the driver had been drinking beer and was about to race
another car, being fully familiar with the rural road on which
the race would proceed, and essentially pressuring Eastman during
the course of the race to go faster so as not to lose the
competition.

      This case presents the extremely unusual situation where
plaintiff, to avoid dismissal, would have to urge that his
pertinent pleadings, allegations and testimony be totally
disregarded. However, he has not attempted to explain or disavow
his consistent contentions that, after several hours of beer
drinking and extended discussions about who had the fastest
vehicle, a drag race ensued and was in progress at the time of
the accident. Even his proposed amended complaint submitted in
the underlying motions alleged that "drag racing" was in
progress. We have previously held that, despite some contrary
evidence, a plaintiff's unequivocal and clear admissions of a
dispositive issue in deposition testimony can result in summary
judgment dismissal (see Jenkins v Jones, 255 AD2d 805, 806
[1998]). Moreover, in the analogous situation of a motion for a
directed verdict (see David D. Siegel, Practice Commentaries,
                              -5-                 517709

McKinney's Cons Laws of NY, Book 7B, CPLR C3212:5 at 13-14),
admissions can support dismissal (see David D. Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4401:2
at 570-571). As Judge Cardozo long ago noted, "[w]hen we say
that there is no evidence to go to a jury, we do not mean that
there is literally none, but that there is none that ought
reasonably to satisfy a jury that the fact sought to be proved is
established" (Matter of Case, 214 NY 199, 204 [1915] [internal
quotation marks and citations omitted]). Since plaintiff has
shown no inclination to depart from or modify his drag racing
theory, it would be unreasonable to permit a trial where the
person pursuing the action urges a jury not to believe any of his
own testimony about his espoused theory of liability. Given all
the relevant facts and circumstances admitted by plaintiff, we
agree with Supreme Court that public policy precludes a recovery.

      The remaining arguments are either academic or without
merit.

     Peters, P.J., Rose and Clark, JJ., concur.


Garry, J. (dissenting).

      I respectfully dissent, based upon our most well-
established procedural rules. "It is well settled that the
drastic remedy of summary judgment should not be granted where
there is any doubt as to the existence of triable issues[,] and
issue finding, rather than issue-determination, is the key"
(Benizzi v Bank of the Hudson, 50 AD3d 1372, 1373 [2008]
[internal quotation marks, brackets and citations omitted]).
Moreover, upon review, we are required to "view the evidence in
the light most favorable to the party opposing the motion, giving
that party the benefit of every reasonable inference and
ascertaining whether there exists any triable issue of fact"
(Boston v Dunham, 274 AD2d 708, 709 [2000]; see Vega v Restani
Constr. Corp., 18 NY3d 499, 503 [2012]; Sutin v Pawlus, 105 AD3d
1293, 1295 [2013]). The majority errs here by doing the
opposite, accepting and adopting the facts in the light most
negative to plaintiff.
                              -6-                517709

      Here, a passerby found plaintiff at the roadside after he
had been ejected from defendant Brian Eastman's pickup truck and
left there by Eastman; plaintiff has been rendered a quadriplegic
as a result of the injuries he sustained. Eastman, both in his
statement to police in the immediate aftermath of this occurrence
and in his subsequent sworn deposition testimony, has steadfastly
denied that there had been any racing occurring prior to his
truck leaving the roadway. Defendant Tyler Eaton denied that the
parties had even discussed the topic of any possible race, let
alone engaged in any racing activity on the evening of
plaintiff's injury; defendant Frank Eastman II, a passenger in
one of the other vehicles, testified that there was some
conversation about what type of engine was faster, but he did not
recall any conversation about racing that evening. The factual
issues posed by the parties' sharply conflicting testimony are
not remotely susceptible to legal determination. Contrary to the
majority's view, plaintiff is not bound by his own view of the
facts, as his account of the events may or may not, in fact, be
accurate. Put another way, the sworn testimony of defendants
cannot be simply overlooked or disregarded upon this application.
This case requires an assessment of credibility and, thus, cannot
be resolved at this juncture by summary judgment (see Escobar v
Velez, 116 AD3d 735, 735 [2014]; Lopez-Viola v Duell, 100 AD3d
1239, 1242 [2012]; Greco v Boyce, 262 AD2d 734, 735 [1999]). For
these reasons, application of the Barker-Manning rule (see
Manning v Brown, 91 NY2d 116 [1997]; Barker v Kallash, 63 NY2d 19
[1984]) was premature and procedurally improper. We should
therefore reverse so much of the order as granted defendants'
motion and dismissed the complaint, and allow the matter to
proceed for factual determination.

      However, assuming without agreeing that it would be
possible to reach this issue at this juncture – that is, assuming
that the underlying factual dispute might be somehow addressed
and resolved – and further, deeming all issues to be resolved
most unfavorably to plaintiff, as the majority proposes, I would
nonetheless reject the majority's position. Although in Manning
v Brown (91 NY2d at 121-122), a passenger in an automobile was
precluded from recovering damages for injuries sustained in an
accident that resulted from "joyriding," the underlying facts
here may be distinguished. In Manning, the plaintiff had set the
                              -7-                  517709

causal chain in motion by stealing the car prior to the accident
and, immediately prior to the accident, was distracting the
driver by engaging in conduct designed to avoid detection of the
theft (id. at 119). Here, we would be extending the rule to
prohibit recovery to plaintiff as a matter of law for the
transgression, essentially, of riding with a drunk driver and
urging that driver to go faster. I share the grave concern of
Supreme Court and the majority when considering the danger posed
when a quiet country road is used for racing or speeding. This
danger is not alleviated in any manner, however, by imposing a
drastic penalty upon the one party least responsible for the
danger created on that roadway that evening, while allowing each
of the drivers who were actually operating vehicles to avoid
potential liability. The rule "is grounded in public policy"
(Barker v Kallash, 63 NY2d at 26), and I do not find that its
application here furthers sound policy goals. There is but one
driver in any vehicle. That individual bears a special host of
legal responsibilities that is not shared with passengers, and
these should not be lightly abrogated, even where the passengers
may be found to have urged their drivers on to acts of terrible
recklessness. This record is replete with factual issues,
including issues of comparative negligence, that should be
weighed and determined by the finder of fact following trial.



     ORDERED that the order is affirmed, with one bill of costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
