Opinion
Index No. 23835/2018E
01-03-2019
ANTHONY GARCIA, Plaintiff, v. PAMELA FRACIS FRANCISCOVOLQUEZ and DANIEL DORSETT, Defendants.
Unpublished Opinion
DECISION AND ORDER
JOHN R. HIGGITT, A.J.S.C.
This negligence action arises out of a rear-end collision that occurred at the intersection of Park Avenue and East 112th Street in the Bronx on September 29, 2016. Defendant Dorsett, the operator of the front vehicle, seeks summary judgment and dismissal of all claims as against him and cross claims against him on the ground that he bears no liability for the accident. Plaintiff, a passenger in the Dorsett vehicle, cross-moves for partial summary judgment on the issue of defendants' liability and for dismissal of defendants' affirmative defenses as to plaintiff's comparative negligence and culpable conduct. The motions are determined as follows:
As to defendant Dorsett's motion for summary judgment, "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, non-negligenl explanation for the accident" (Matos v Sanchez, 147 A.D.3d 585, 586 [1st Dept 2017]; see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]; Agramonte v City of New York, 288 A.D.2d 75 [1st Dept 2001]). Furthermore, "Vehicle and Traffic Law § 1129 imposes a duty to be aware of traffic conditions, including vehicle stoppages" (Corrigan v Porter Cab Corp., 101 A.D.3d 471, 472 [1st Dept 2012]).
Defendant Dorsett established his prima facie entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Matos v Sanchez, supra-, Corrigan v Porter Cab Corp., supra). Defendant Dorsett submits a copy of the pleadings, his affidavit, and an uncertified police accident report. Defendant Dorsett avers that his vehicle, in which plaintiff was a passenger, was stopped behind two other vehicles already waiting at the traffic light. Defendant Dorsett further avers that he had been slopped at the red light for 45-60 seconds when defendant Franciscovolquez's vehicle impacted the rear end of his vehicle.
In opposition, neither plaintiff nor defendant Franciscovolquez raises a triable issue of fact to justify denial of summary judgment in favor of defendant Dorsett. While defendant Franciscovolquez asserts that defendant Dorsett backed his vehicle into defendant Franciscovolquez's, she cites only to her hearsay statement in the uncertified police report to support this claim. The First Department has consistently held that an "uncertified police report attached to counsel's affirmation constitutes inadmissible hearsay" (Silva v Lakins, 118 A.D.3d 556, 557 [1st Dept 2014]; see Raposo v Robinson, 106 A.D.3d 593 [1st Dept 2013]; Rivera v GT Acquisition I Corp.,12 A.D.3d 525 [1st Dept 2010]; Coleman v Macias, 61 A.D.3d 569 [1st Dept 2009]). A police accident report containing hearsay statements regarding the ultimate issue of fact may not be considered for the purpose of determining the manner in which an accident occurred (see Jenkins v Maggies Paratransit Corp.,151 A.D.3d 484 [Ist Dept 2017]; Kajoshaj v Greenspan, 88 A.D.2d 538 [1st Dept 1982]; see also People v McClean, 69 N.Y.2d 426 [1987]). Notably, neither plaintiff nor defendant Franciscovolquez submitted an affidavit in opposition.
Plaintiffs and defendant Franciscovolquez's further argument that the motion is premature inasmuch as no discovery has taken place is unavailing. Defendant Dorsett's motion is not premature because "the information as to why [defendant Franciscovolquez's vehicle] struck the rear end of [defendant Dorsett's] car reasonably rests within defendant driver's own knowledge" (Rodriguez v Garcia, 154 A.D.3d 581,581 [1st Dept 2017]; see Castaneda v DO & CO New York Catering, Inc., 144 A.D.3d 407 [1st Dept 2016]). The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (see Castaneda v DO &CO New York Catering, Inc, supra', Avant v Cepin Livery Corp., 74 A.D.3d 533 [1st Dept 2010J; Planned Bldg. Servs., Inc. v S.L Green Realty Corp., 300 A.D.2d 89 [1st Dept 2002]).
Plaintiffs cross-motion for partial summary judgment on the issue of defendants' negligence is denied. Plaintiffs proof established his freedom from negligence contributing to the accident (see Perez v Sleekier, 157 A.D.3d 445 [1st Dept 2018]). Uis papers, however, failed to establish the negligence of any defendant as a matter of law (see Oluwatayo v Dulinayan, 142 A.D.3d 113 [1st Dept 2016]). As the Oluwatayo court observed, cases such as Garcia v TriCounty Ambulette Serv., 282 A.D.2d 206 [1st Dept 2001]), "stand[] only for the proposition that in motor vehicle negligence actions, an innocent plaintiff is entitled to a determination that she for he] had no culpable conduct on the issue of liability irrespective of the unresolved issue of a defendant driver's negligence" (Oluwatayo, 142 A.D.3d at 119 [emphasis added]). A passenger plaintiff is not relieved of the duty of affirmatively establishing the negligence of any defendant (Guzman v Desantis, 148 A.D.3d 580 [1st Dept 2017]).
Defendant Franciscovolquez failed to raise an issue of fact to plaintiffs negligence; accordingly, defendant Franciscovolquez's affirmative defense alleging plaintiffs culpable conduct is dismissed.
For the foregoing reasons, it is hereby
ORDERED that defendant Dorsett's motion for summary judgment is granted; and it is further
ORDERED, that the Clerk of the Court is directed to enter judgment in favor of defendant Dorsett dismissing the complaint as against him and all cross claims against him; and it is further
ORDERED, that the aspect of plaintiffs cross motion for dismissal of defendant Franciscovolquez's affirmative defenses alleging plaintiffs comparative negligence and culpable conduct is granted; and it is further
ORDERED, that defendant Franciscovolquez's first affirmative defense alleging plaintiffs comparative negligence is dismissed; and it is further
ORDERED, that plaintiffs cross motion is otherwise denied. This constitutes the decision and order of the court.