        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

626
CA 14-02028
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


CAROL M. STONE AND ROGER E. STONE,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

JESSE D. NEUSTRADTER AND CRAIG E. BRITTIN,
DEFENDANTS-RESPONDENTS.


SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (PHILIP J. O’SHEA, JR., OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

TIFFANY L. D’ANGELO, ROCHESTER, FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered January 14, 2014. The order granted the motion
of defendants for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
and the complaint is reinstated.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Carol M. Stone (plaintiff) when her bicycle
collided with the bicycle of her husband, Roger E. Stone (husband),
after he took evasive action to avoid a vehicle driven by defendant
Jesse D. Neustradter (driver) and owned by defendant Craig E. Brittin
(owner). From the driveway of the owner’s residence, the driver
approached the road on which plaintiffs were bicycling and stopped.
He looked right, then looked left, and to his left he observed the
bicycles colliding. It is undisputed that the vehicle did not make
contact with either of the plaintiffs or their bicycles. Following
discovery, defendants moved for summary judgment dismissing the
complaint on the grounds that the driver was not negligent, the sole
proximate cause of the accident was the “uncontrolled” operation of
the bicycle ridden by the husband, and plaintiff assumed the risk of
bicycling.

     We agree with plaintiffs that Supreme Court erred in granting the
motion. We conclude that defendants failed to meet their burden of
establishing as a matter of law that the driver was not negligent or
that his actions were not a proximate cause of the accident (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).
Specifically, defendants’ submissions failed to eliminate all
questions of fact whether the driver was negligent in encroaching onto
                                 -2-                           626
                                                         CA 14-02028

the shoulder of the road, thereby blocking the pathway of the oncoming
bicycles, or in operating the vehicle as it approached the road from
the driveway that was partially obscured by landscaping. Defendants
therefore also failed to establish as a matter of law that the
husband’s operation of his bicycle was the sole proximate cause of the
accident. Defendants’ submissions included the deposition testimony
of the husband, who testified that he was bicycling just ahead of
plaintiff, with both of them traveling to the right of the white fog
line in a “bike lane.” The husband further testified that plaintiffs
were descending a hill when he saw the vehicle moving in the driveway
approximately 15 feet ahead of them, and that the vehicle moved past
the end of the driveway approximately two feet into the “bike lane.”
He also testified that when he first saw the vehicle, he yelled to the
driver as loud as he could to alert the driver to their presence. He
then veered to the left for fear of being struck by the vehicle, and
plaintiff’s bicycle struck his bicycle. After the bicycles collided,
he yelled at the driver and occupants of the vehicle for “barreling
out of [the] driveway” without looking. We conclude that there are
questions of fact whether the driver was driving in a reasonable
manner and whether the driver’s actions set off a chain of events that
caused the husband to take action in evading the vehicle, which led to
the collision between the plaintiffs’ bicycles (see Sheffer v Critoph,
13 AD3d 1185, 1186; see generally Tutrani v County of Suffolk, 10 NY3d
906, 907). We agree with plaintiffs that the lack of contact between
a bicycle and the vehicle would not preclude a factual finding that
the driver was negligent in his operation of the vehicle and that any
such negligence proximately caused the accident (see Tutrani, 10 NY3d
at 907).

     Finally, we conclude that “assumption of the risk does not apply
to the fact pattern in this appeal, which does not fit comfortably
within the parameters of the doctrine” (Custodi v Town of Amherst, 20
NY3d 83, 89).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
