Opinion
Index No. 21606/2018E
11-13-2018
DOREEN ROSE- BONKOUNGOU, Plaintiff, v. DESMOND G. BRERETON and NATALIE A. BARNETTE, Defendants.
Unpublished Opinion
DECISION AND ORDER
John R. Higgitt, J.
This is a negligence action to recover damages for personal injuries plaintiff sustained in a motor vehicle accident that took place on June 6, 2017. At the time of the accident, plaintiff was parked when the car operated by defendant Brereton and owned by defendant Barnette struck plaintiffs vehicle from behind. Plaintiff now seeks partial summary judgment on the issue of defendants' liability. For the reasons that follow, plaintiffs is granted.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a nonnegligent explanation for the failure to maintain a safe distance ... 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]). The happening of a rear-end collision is itself a prima facie case of negligence of the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 ).
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, an uncertified police report and her affidavit. Plaintiffs affidavit sets forth sufficient detail as to how the accident occurred, namely that plaintiffs vehicle was parked when the vehicle operated by defendant Brereton and owed by defendant Barnette impacted the rear end of plaintiffs vehicle, without warning.
In opposition, defendants failed to raise a triable issue of material fact (see Zuckerman v City of New York, supra). The affirmation of counsel alone is not sufficient to rebut plaintiffs prima facie showing of entitlement to summary judgment (id). In addition, bald, conclusory allegations, even if believable, are not enough to withstand summary judgment (see Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). Defendants argue that plaintiffs motion should be denied as premature because no discovery has been conducted. However, plaintiffs motion cannot be considered premature when "the information as to why [the 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 ). 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]).
Furthermore, defendants argue that the motion should be denied because the plaintiff rely on the uncertified police report. Even if the accident report was not in admissible form, plaintiffs unrefuted affidavit was sufficient to meet her prima facie burden (see Santana v Banco Inc., 115 A.D.3d 560 [1st Dept 2014]). Moreover, while the police report might be inadmissible as hearsay (see Silva v Lakins, 118 A.D.3d 556 [1st Dept 2014]), the statement by defendant regarding her break failure constitutes an admission (see Cruz v Skeritt, 140 A.D.3d 554 [1st Dept 2016], Because defendants have failed to rebut the presumption of their negligence (see Daitilo 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 defendant's affirmative defense of comparative fault (see CPLR 2214[a]; cf. Poon v Nisanov, 162 A.D.3d 804 [2nd Dept 2018]).
Accordingly, it is
ORDERED, that the aspect of plaintiff s motion for partial summary judgment on the issue of defendants' liability for causing the subject motor vehicle accident is granted; and it is further
ORDERED, that plaintiffs motion is otherwise denied.
This constitutes the decision and order of the court.