STATE OF NEW YORK

SUPREME COURT: CHAUTAUQUA COUNTY

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JOANNE SMITH and ROBERT SMITH,


Plaintiffs,


vs Index No H-8285


MICHAEL R. YUCHNITZ,

Defendant

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ANTHONY J. SPANN, P.C.

(David M. Civilette,

Esq. of Counsel) for

Plaintiff


GROSSE, CHELUS & HERDZIK, P.C.

(Regina DelVecchio, Esq.

of Counsel) for Defendant


COLLIGAN & DELGROSS

(Wanda M. Therolf, Esq. of

Counsel) for Plaintiff

on Counterclaim

 


DECISION and ORDER



GERACE, J.


Plaintiffs, whose vehicle was rear ended by Defendant at a stop light, moves for summary judgment.


According to defendant, traffic was heavy; both vehicles

were stopped; the light changed; both began moving when

defendant's attention was distracted by something he cannot

recall -other than "it was a nice day" and "my windows were

down"; and at that moment, plaintiff's vehicle stopped again.


The only difference in testimony is that plaintiff claims

he never moved forward after coming to a stop at the light.

Defendant says there is a question of credibility that prevents summary judgment.


There is no evidence to show any fault on the part of

plaintiffs. Defendant admitted traffic was heavy. He had a duty to keep the plaintiff's vehicle in view; a duty to keep a safe distance between the two vehicles (Vehicle & Traffic Law §1129(a).


His admission that his attention was distracted by something he can't recall while he was moving in heavy traffic and his inability to indicate that plaintiff's stopping was unjustified is enough even under his version to justify summary judgment. (See: PARISI V. MELTZER, 611 NYS2d 291; REBECCHI v. WHITMORE, 172 AD2d 600, 568 NYS2d 423, and other cases cited by Counsel for Plaintiff on the counterclaim.


The motion for summary judgment on the counterclaim is granted.


No costs to any party.


THIS IS THE DECISION AND ORDER OF THIS COURT. PLAINTIFF IS TO FILE ORIGINAL AND SERVE DEFENDANT WITH COPY AND NOTICE OF ENTRY.


DATED: February 8, 1995

Mayville, New York


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JOSEPH GERACE

SUPREME COURT JUSTICE