Opinion
2013-03-12
Robert Lee BROWN, Plaintiff–Respondent, v. Evans G. SMALLS, et al., Defendants, Djiba Doumbouya, Defendant–Appellant.
The Law Offices of Michael A. Barnett, Garden City (Jay M. Weinstein of counsel), for appellant. Bernstone & Grieco, LLP, New York (Matthew A. Schroeder of counsel), for respondent.
The Law Offices of Michael A. Barnett, Garden City (Jay M. Weinstein of counsel), for appellant. Bernstone & Grieco, LLP, New York (Matthew A. Schroeder of counsel), for respondent.
SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 18, 2012, which denied the motion of defendant Djiba Doumbouya for summary judgment dismissing the complaint as against him, unanimously reversed,on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
“[A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident” ( Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010] ). Here, Doumbouyaestablished his entitlement to judgment as a matter of law. Doumbouya testified that prior to being struck from behind by the car in which plaintiff was a rear-seat passenger, he was traveling in the same lane as plaintiff's car, just ahead of it, and had just begun to move forward after stopping at a red light, which had turned green.
Plaintiff failed to rebut Doumbouya's showing with a nonnegligent explanation for the rear-end collision from the driver of the car in which plaintiff was traveling. Indeed, the driver's sworn statement that Doumbouya was ahead of him at all times and was stopped at the moment of impact was consistent with Doumbouya's testimony. Plaintiff's attempt to provide a nonnegligent explanation for the rear impact, which contradicts the sworn statement of his driver, was insufficient. To the extent plaintiff relies upon his driver's statement, as recounted in a police accident report, that Doumbouya's car stopped suddenly, the unsworn report is inadmissable hearsay ( see Stankowski v. Kim, 286 A.D.2d 282, 283, 730 N.Y.S.2d 288 [1st Dept. 2001], appeal dismissed97 N.Y.2d 677, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), and, in any event, is not sufficient to defeat the motion ( see Francisco v. Schoepfer, 30 A.D.3d 275, 276, 817 N.Y.S.2d 52 [1st Dept. 2006] ).