Opinion
2020–03529 Index No. 504138/18
11-23-2022
Gilberto EDWARDS, respondent, v. CHEEZWHSE COM, INC., et al., appellants.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Stephen D. Straus of counsel), for appellants. Gabriel Law Firm, P.C., Rockville Centre, NY (Thomas Bernard of counsel), for respondent.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Stephen D. Straus of counsel), for appellants.
Gabriel Law Firm, P.C., Rockville Centre, NY (Thomas Bernard of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated February 27, 2020. The order granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
On December 21, 2017, a vehicle the plaintiff was operating allegedly was struck in the rear by a vehicle operated by the defendant Tremayne Garrett (hereinafter the defendant driver) and owned by the defendant Cheezwhse Com, Inc. The plaintiff allegedly sustained personal injuries as a result of the collision, and commenced this action against the defendants. The Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability. The defendants appeal.
In support of his motion, the plaintiff submitted, inter alia, his own affidavit, which demonstrated, prima facie, that the defendant driver was negligent in striking the rear of the plaintiff's vehicle (see Vehicle and Traffic Law § 1129[a] ; see generally Newman v. Apollo Tech Iron Work Corp., 188 A.D.3d 902, 903, 135 N.Y.S.3d 133 ; Adam v. Catania, 170 A.D.3d 636, 93 N.Y.S.3d 609 ). In opposition, the defendants failed to raise a triable issue of fact. The defendants did not submit an affidavit from the defendant driver to raise a triable issue of fact as to whether there was a nonnegligent explanation for striking the rear of the plaintiff's vehicle (see Maliakel v. Morio, 185 A.D.3d 1018, 1019, 129 N.Y.S.3d 99 ; Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 737, 846 N.Y.S.2d 309 ; Niyazov v. Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582 ).
Furthermore, contrary to the defendants’ contention, the plaintiff's motion was not premature, as the defendants 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 plaintiff (see CPLR 3212[f] ; Gaston v. Vertsberger, 176 A.D.3d 919, 920, 111 N.Y.S.3d 314 ; Lazarre v. Gragston, 164 A.D.3d 574, 575, 81 N.Y.S.3d 541 ; Niyazov v. Hunter EMS, Inc., 154 A.D.3d 954, 955, 63 N.Y.S.3d 457 ).
The contention raised by the plaintiff in Point V of his brief is without merit.
RIVERA, J.P., MALTESE, FORD and TAYLOR, JJ., concur.