Opinion
0110240/2004.
Decided January 10, 2008.
The following papers, numbered 1 to 3, were read on this motion by plaintiffs for summary judgment on the issue of liability.
PAPERS NUMBERED Notice of Motion — Affidavits — Exhibits 1 Answering Affidavits — Exhibits (Memo) 2
This is an action to recover damages for injuries allegedly sustained as a result of a motor vehicle accident, which occurred on April 18, 2002 at approximately 8:00 a.m., on Eighth Avenue between 148th and 149th Streets in Manhattan. Plaintiff on the counterclaim Leroy Wise, moves pursuant to CPLR § 3212 for summary judgment on the issue of liability and to dismiss the counterclaim asserted against him. The movant avers that he was the driver of a stopped vehicle which was struck in the rear by a vehicle owned and operated by Abdul Malik Brooks.
To prevail on a motion for summary judgment, the moving party must produce evidentiary proof in admissible form sufficient to show the absence of any material issue of fact and the right to judgment as a matter of law. See Kosson v Algaze, 84 NY2d 1019 (1995); Alvarez v Prospect Hospital, 68 NY2d 320 (1986); Winegrad v New York Univ. Med Ctr., 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).
If the moving party makes the requisite showing, the burden then shifts to the opposing party to come forward with proof in admissible form to raise a triable issue of fact requiring a trial. See Kosson v Algaze, supra; Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med Ctr., supra; Zuckerman v City of New York, supra.
In support of his motion, the plaintiff proffers the pleadings, his deposition testimony, the defendant's deposition testimony and the New York City Police Department report filled out in conjunction with this collision. The defendants oppose the relief sought offering only an attorney's affirmation.
In deciding a summary judgment motion, the court must bear in mind that issue finding rather than issue determination is the key. See Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Since summary judgment is a drastic remedy which deprives a litigant of his or her day in court, the evidence adduced on the motion must be liberally construed in the light most favorable to the opposing party. See Kesselman v Lever House Restaurant, 29 AD3d 302 (1st Dept. 2006); Goldman v Metropolitan Life Ins. Co., 13 AD3d 289 (1st Dept. 2004).
The motion must be granted since the plaintiff has demonstrated, by proof in admissible form, the absence of any triable issues of fact and the right to judgment as a matter of law. See Kosson v Algaze, supra; Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med Ctr.,supra; Zuckerman v City of New York, supra.
It is well settled that the driver of a motor vehicle is expected to drive at a safe rate of speed, taking into account weather and road conditions, and to maintain a safe distance from the vehicle in front of him (see Vehicle and Traffic Law §§ 1129[a]; 1180[a]; Malone v Morillo, 6 AD3d 324 (1st Dept. 2004); Mitchell v Gonzalez, 269 AD2d 250 [1st Dept. 2000]). "[T]his rule imposes on [drivers] a duty to be aware of traffic conditions, including vehicle stoppages." Johnson v Philips, 261 AD2d 269, 271 (1st Dept. 1999). Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver who strikes the vehicle in front, unless the operator of the rear vehicle can come forth with an adequate, non-negligent explanation for the collision. See Somers v Condlin, 39 AD3d 289 (1st Dept. 2007); Francisco v Schoepfer, 30 AD3d 275 (1st Dept. 2006); Garcia v Bakemark Ingredients (East) Inc., 19 AD3d 224 (1st Dept. 2005); Grimes-Carrion v Carroll, 13 AD3d 125 (1st Dept. 2004);Johnson v Phillips, supra.
The defendant correctly argues that a non-negligent explanation maybe made out, in some circumstances, by showing that the front vehicle stopped short. See, Sawhey v Bailey, 13 AD3d 203 (1st Dept. 2004); Martin v Pullafico, 272 AD2d 305 (2nd Dept. 2000); Corrado v DeJesus, 264 AD2d 577 (1st Dept. 1999). However, the First Department has repeatedly held that "an assertion that the lead vehicle 'stopped suddenly' is generally insufficient to rebut the presumption of negligence on the part of the offending vehicle." Francisco v Schoepfer,supra at 276; see Ferguson v Honda Lease Trust, 34 AD3d 356 (1st Dept. 2006); Woodley v Ramirez, 25 AD3d 451 (1st Dept. 2006).
Here, the plaintiff has submitted the transcripts of his deposition testimony, as well as that of the defendant. These submissions establish that Wise car was at a complete stop at a red light on Eighth Avenue for approximately thirty seconds when it was struck from behind by the Lopez vehicle. The plaintiff has also offered the New York City Police report filled out shortly after the collision. In the First Department, police reports are admissible as business records (CPLR 4518[a]) but only if the report is made based upon the officer's personal observations and while carrying out their police duties. See Holliday v Hudson Armored Car Courier Service, Inc., 301 AD2d 392 (1st Dept. 2003); Yeargans v Yeargans, 24 AD2d 280 (1st Dept. 1965). If the information contained in the report came from witnesses not engaged in the police business in the course of which the report was made, or it came from a witness who had no duty to report the information, the report is not admissible. See Johnson v Lutz, 226 App Div 772 (1930); Holliday v Hudson Armored Car Courier Service, Inc., supra; Yeargans v Yeargans, supra; see also State Farm Mutual Automobile Insurance Co, v Langan, 18 AD3d 860 (2nd Dept. 2005);Conners v Duck's Cesspool Service, Ltd., 144 AD2d 329 (2nd Dept. 1988);Casey v Tierno, 127 AD2d 727 (2nd Dept. 1987). While the driver of an offending vehicle is required to provide the responding police officer with proof of registration of the vehicle (see Lopez v Ford Motor Credit Company, 238 AD2d 211 [1st Dept. 1 997]), he or she has no duty to report the circumstances or the causes of the accident. See Cover v Cohen, 61 NY2d 261 (1984); Hatton v Gassler, 219 AD2d 697 (1st Dept. 1995); see also Mooney v Osowiecky, 235 AD2d 603 (3rd Dept. 1997).
Indeed, the First Department has consistently held that a police report which contains hearsay statements regarding the ultimate issues of fact may not be admitted into evidence for the purpose of establishing the cause of the accident. See Figueroa v Luna, 281 AD2d 204 (1st Dept. 2001); Aetna Casualty Surety Co. v Island Transportation, 233 AD2d 157 (1st Dept. 1996); Sansevere v United Parcel Service, Inc., 181 AD2d 521 (1st Dept. 1992); Kajoshai v Greenspan, 88 AD2d 538 (1st Dept. 1982);Murray v Donlan, 77 AD2d 337 (2nd Dept. 1980). A review of the undisputed facts indicates that defendant Brooks struck the lawfully stopped Wise vehicle from behind. As such, he was negligent. See Malone v Morillo,supra; Mitchell v Gonzalez, supra; Johnson v Philips, supra.
In opposition, the defendant has merely submitted the affirmation of his attorney, who claims no personal knowledge of the accident. Thus, the affirmation is without probative value. See Zuckerman v City of New York, supra at 563; Johnson v Rudolph, 34 AD3d 338 (1st Dept. 2006); Diaz v New York City Tr. Auth., 12 AD3d 316 (1st Dept. 2004). While an attorney's affirmation may serve as the vehicle for submitting documentary evidence or other proof in admissible form as an attachment (see Alvarez v Prospect Hospital, supra at 325; Zuckerman v City of New York, supra at 563), there are no attachments submitted. There is no affidavit of defendant driver or any other witness to the accident to contradict the plaintiff's account. Accordingly, the defendant has failed to show that "facts essential to justify opposition to the motion may emerge upon further discovery." Bailey v NYCTA, 270 AD2d 156, 157 (1st Dept. 2000);see also Cioe v Petrocelli Electric Co., Inc. 33 AD3d 377 (1st Dept. 2006).
For these reasons and upon the foregoing papers as well as oral argument held, it is,
ORDERED that the motion by the plaintiff for judgment on the issue of liability is granted, and it further
ORDERED that the counterclaim asserted by defendant Abdul Malik Brooks as against Leroy Wise is dismissed in its entirety.
This constitutes the Decision and Order of the Court.