Opinion
15808 Index No. 33324/19E Case No. 2021–00056
04-28-2022
Mario ACEVEDO et al., Plaintiffs–Respondents, v. Parvex AKHTAR et al., Defendants–Appellants.
Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for appellants. Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondents.
Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for appellants.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondents.
Gische, J.P., Webber, Friedman, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered October 15, 2020, which granted plaintiffs’ motion for summary judgment on the issue of liability, unanimously affirmed, without costs.
In opposition to plaintiffs’ prima facie showing of entitlement to summary judgment, defendant failed to offer a non-negligent explanation for the rear-end collision (see Matos v. Sanchez, 147 A.D.3d 585, 586, 47 N.Y.S.3d 307 [1st Dept. 2017] ). Even accepting as true defendant driver's affidavit that plaintiffs stopped abruptly upon approaching a yellow light, still "does not explain why defendant driver failed to keep a safe distance between himself and the vehicle ahead of him" ( Rodriguez v. New York Cross, 200 A.D.3d 624, 155 N.Y.S.3d 770 [1st Dept. 2021] ; see also Smyth v. Murphy, 177 A.D.3d 492, 114 N.Y.S.3d 302 [1st Dept. 2019] ; Malone v. Morillo, 6 A.D.3d 324, 325, 775 N.Y.S.2d 312 [2004] ).
Defendants’ remaining contentions are unpreserved and, in any event, unavailing. The motion was not premature, as both drivers submitted affidavits setting forth their detailed accounts of what had occurred, and defendants have not demonstrated what further facts a former employee could offer that would be "essential to justify opposition" to plaintiffs’ motion ( CPLR 3212[f] ); Rodriguez, 200 A.D.3d 624, 155 N.Y.S.3d 770 ; Jeffrey v. DeJesus, 116 A.D.3d 574, 575, 984 N.Y.S.2d 325 [1st Dept. 2014] ). The emergency doctrine is inapplicable to this rear-end collision (see Vanderhall v. MTA Bus Co., 160 A.D.3d 542, 542–543, 74 N.Y.S.3d 548 [1st Dept. 2018] ; Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999] ).