Opinion
2021–04535, (Index 701297/20)
08-02-2023
Jean Samuel BRUCE, respondent, v. Wade M. TAKAHATA, et al., appellants.
Camacho Mauro Mulholland, LLP, New York, NY (Kathleen M. Mulholland of counsel), for appellants. Wingate, Russotti, Shapiro, Moses and Halperin, LLP, New York, NY (David M. Schwarz and Michael J. Fitzpatrick of counsel), for respondent.
Camacho Mauro Mulholland, LLP, New York, NY (Kathleen M. Mulholland of counsel), for appellants.
Wingate, Russotti, Shapiro, Moses and Halperin, LLP, New York, NY (David M. Schwarz and Michael J. Fitzpatrick of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Maurice E. Muir, J.), entered May 27, 2021. The order granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements. In January 2020, the plaintiff commenced this action against the defendants to recover damages for personal injuries that he allegedly sustained on May 31, 2017, when the vehicle that he was operating was struck in the rear by a vehicle operated by the defendant Wade M. Takahata and owned by the defendant Architectural Entrance System, Inc. After joinder of issue, but prior to the completion of discovery, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence. The Supreme Court granted the motion. The defendants 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] ; Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 814, 164 N.Y.S.3d 497 ). "Accordingly, 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 Mahmud v. Feng Ouyang, 208 A.D.3d 861, 174 N.Y.S.3d 721 ). "A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 323, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Perez v. Persad, 183 A.D.3d 771, 771–772, 123 N.Y.S.3d 683 ).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of his affidavit, in which he averred that his vehicle was struck in the rear by the defendants’ vehicle (see Vehicle and Traffic Law § 1129[a] ; Mahmud v. Feng Ouyang, 208 A.D.3d at 862, 174 N.Y.S.3d 721 ; Lopez v. Dobbins, 164 A.D.3d 776, 777, 79 N.Y.S.3d 566 ). In opposition, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Munoz v. Agenus, Inc., 207 A.D.3d 643, 645, 173 N.Y.S.3d 18 ). Contrary to the defendants’ contention, the motion was not premature (see CPLR 3212[f] ). The defendants’ proffered need to conduct depositions did not warrant denial of the motion, since the defendant driver already had personal knowledge of the relevant facts, and their mere hope or speculation that evidence might be uncovered was insufficient to deny the motion (see Quintanilla v. Mark, 210 A.D.3d 713, 715, 177 N.Y.S.3d 687 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559 ). However, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses alleging comparative negligence. The plaintiff's affidavit did not eliminate all triable issues of fact as to whether he was free from comparative negligence (see Ramirez v. Wangdu, 195 A.D.3d 646, 647, 144 N.Y.S.3d 630 ; Flores v. Rubenstein, 175 A.D.3d 1490, 1491, 109 N.Y.S.3d 390 ; Aponte v. Vani, 155 A.D.3d 929, 930–931, 64 N.Y.S.3d 123 ). Thus, the Supreme Court should not have granted that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence.
CONNOLLY, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.