Opinion
Index No. 20886/2018E
01-03-2019
RITA OKEKE, Plaintiff, v. SAMSON B. AKLILU and BISRAT AKLILU, Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon. JOHN R. HIGGITT, A.J.S.C.
The following papers numbered 10 to 16 and 20 to 21 in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY), noticed on September 4, 2018 and duly submitted as No. 58 on the Motion Calendar of October 30, 2018.
NYSCEF Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed
10-16
Notice of Cross-Motion - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
20-21
Replying Affidavit and Exhibits
Filed Papers
Memoranda of Law
Stipulations
Upon the foregoing papers, plaintiffs motion for summary judgment on the issue of defendants' liability for causing the subject motor vehicle accident is granted, in accordance with the annexed decision and order.
This is a negligence action to recover damages for personal injuries plaintiff sustained in a motor vehicle accident that took place on June 27, 2017. Plaintiff was travelling on the Bronx River Parkway when the vehicle owned by defendant Bisrat Aklilu and driven by defendant Samson B. Aklilu struck plaintiffs vehicle in the rear. Plaintiff seeks partial summary judgment on the issue of defendants' liability. For the reasons that follow, plaintiffs motion is granted.
"A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340, 340 [1st Dept 2008]). A rear-end collision constitutes a prima facie case of negligence against the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that a "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (see Darmento v Pacific Molasses Co., 81 N.Y.2d 985, 988 [1993]). Based on the plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct results in a collision (id.).
Plaintiff satisfied her prima facie burden of establishing her entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]). Plaintiff submitted a copy of the pleadings, her affidavit and a certified report police report. Plaintiff averred that she was driving on the Bronx River Parkway when defendants' vehicle rear ended plaintiffs vehicle.
In opposition, defendants failed to raise a triable issue of fact as to their liability (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Defendants argued that the motion should be denied because plaintiff failed to submit evidence in admissible form, relying solely on her "self-serving" affidavit. However, an affidavit submitted by an interested party is competent evidence and is sufficient to discharge the interested party's summary judgment burden (see Miller v City of New York, 253 A.D.2d 394, 395 [1st Dept 1998]).
Defendants further argue that the motion should be denied because there is a question of fact as to whether plaintiffs vehicle was stopped or moving at the time of the accident. However, regardless of whether plaintiff was moving or stopped at the time of the accident, defendants failed to maintain enough distance between their vehicle and plaintiffs vehicle (LaMasa, supra).
Defendants' counsel argued that the motion is premature because depositions are not complete. This motion, however, is not premature because "the information as to why [defendants' vehicle] struck the rear end of plaintiff 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, supra; Avant v Cepin Livery Corp., 74 A.D.3d 533 [1st Dept 2010]; Planned Bldg. Servs., Inc. v S.L. Green Realty Corp., 300 A.D.2d 89 [1st Dept 2002]). Because defendants failed to rebut the presumption of their negligence (see Dattilo v Best Tramp. Inc., 79 A.D.3d 432 [1st Dept 2010]), the motion is granted.
The court notes that plaintiff did not seek (and the court has not considered) dismissal of defendants' affirmative defense of comparative fault (see CPLR 2214[a]; cf. Boon v Nisanov, 162 A.D.3d 804 [2nd Dept 2018]).
Accordingly, it is
ORDERED, that plaintiffs motion for summary judgment on the issue of defendants' liability for causing the subject motor vehicle accident is granted.
This constitutes the decision and order of the court.