Opinion
2018–05722 Index No. 716189/17
03-13-2019
Naira BATASHVILI, et al., Appellants, v. W.I. VELIZ–PALACIOS, Respondent.
Law Offices of Regis A. Gallet, LLC, Forest Hills, NY, for appellants. Nancy L. Isserlis (Saretsky Katz & Dranoff, LLP, New York, N.Y. [Gary J. Levy ], of counsel), for respondent.
Law Offices of Regis A. Gallet, LLC, Forest Hills, NY, for appellants.
Nancy L. Isserlis (Saretsky Katz & Dranoff, LLP, New York, N.Y. [Gary J. Levy ], of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered April 24, 2018. The order denied the plaintiffs' motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted.
On November 8, 2016, at about 5:50 a.m., a vehicle operated by the defendant struck the rear of a vehicle operated by the plaintiff Naira Batashvili and occupied by the plaintiff Dmitry Batashvili. The plaintiffs commenced this personal injury action against the defendant. Shortly after the defendant filed his answer, the plaintiffs moved for summary judgment on the issue of liability. The Supreme Court denied the motion, and the plaintiffs appeal.
"A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" ( Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ; Niyazov v. Hunter EMS, Inc., 154 A.D.3d 954, 63 N.Y.S.3d 457 ). "[A] rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" ( Scheker v. Brown, 85 A.D.3d 1007, 1007, 925 N.Y.S.2d 528 ; see Witonsky v. New York City Tr. Auth., 145 A.D.3d 938, 939, 43 N.Y.S.3d 505 ; Gleason v. Villegas, 81 A.D.3d 889, 890, 917 N.Y.S.2d 890 ).
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating, through the affidavit of Naira Batashvili and a police accident report, that their vehicle was traveling within one lane of traffic at all times when it was struck in the rear by the defendant's vehicle (see Niyazov v. Hunter EMS, Inc., 154 A.D.3d at 955, 63 N.Y.S.3d 457 ; Witonsky v. New York City Tr. Auth., 145 A.D.3d at 939, 43 N.Y.S.3d 505 ; Scheker v. Brown, 85 A.D.3d at 1007, 925 N.Y.S.2d 528 ). Contrary to the defendant's contention, the portion of the uncertified police accident report that contained his admission that he changed into the lane at issue and did not see the plaintiffs' vehicle in time to avoid the impact was admissible (see Lesaldo v. Dabas, 140 A.D.3d 708, 709, 32 N.Y.S.3d 321 ; Gezelter v. Pecora, 129 A.D.3d 1021, 1022–1023, 13 N.Y.S.3d 141 ).
In opposition, the defendant failed to raise a triable issue of fact. The defendant submitted an affidavit wherein he averred that he did not change lanes and that the accident occurred when the plaintiffs' vehicle made a sudden stop. The affidavit was a belated effort by the defendant to avoid the consequences of his earlier admission by raising what appeared to be a feigned issue of fact, which was insufficient to defeat the motion (see Rosenblatt v. Venizelos, 49 A.D.3d 519, 520, 853 N.Y.S.2d 578 ; Abramov v. Miral Corp., 24 A.D.3d 397, 398, 805 N.Y.S.2d 119 ; cf. Imamkhodjaev v. Kartvelishvili, 44 A.D.3d 619, 621, 843 N.Y.S.2d 160 ). In any event, the defendant's bare assertion that the plaintiffs' vehicle made a sudden stop, standing alone, was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the accident (see Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 671, 974 N.Y.S.2d 563 ). Moreover, the defendant failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiffs (see CPLR 3212[f] ; Abramov v. Miral Corp., 24 A.D.3d at 398, 805 N.Y.S.2d 119 ; Niyazov v. Bradford, 13 A.D.3d 501, 502, 786 N.Y.S.2d 582 ). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiffs' motion (see Fenko v. Mealing, 43 A.D.3d 856, 841 N.Y.S.2d 378 )
Accordingly, the Supreme Court should have granted the plaintiffs' motion for summary judgment on the issue of liability.
AUSTIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.