Opinion
Index No. 27543/2018E
11-09-2018
SALUNA SPIGNER, Plaintiff, v. GREGORY DICKSON, Defendant.
Unpublished Opinion
John R. Higgitt, J.
DECISION AND ORDER
John R. Higgitt, A.J.S.C.
The following papers numbered 6 to 11 and 15 to 16 in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) , noticed on October 17, 2018 and duly submitted as No. 61 on the Motion Calendar of November 7, 2018
| NYSCEF Doc. Nos. | |
| Notice of Motion - Exhibits and Affidavits Annexed | 6-11 |
| Notice of Cross-Motion - Exhibits and Affidavits Annexed | |
| Answering Affidavit and Exhibits | 15-16 |
| Replying Affidavit and Exhibits | |
| Filed Papers | |
| Memoranda of Law | |
| Stipulations |
Upon the foregoing papers, plaintiffs motion for partial summary judgment on the issue of defendant's liability for causing the subject motor vehicle accident is granted, in accordance with the annexed decision and order.
Upon plaintiffs September 25, 2018 notice of motion and the affirmation, affidavit and exhibits submitted in support thereof; defendant's November 5, 2018 affirmation in opposition; and due deliberation; plaintiffs motion for partial summary judgment on the issue of defendant's liability for causing the subject motor vehicle accident is granted.
In support of the motion, plaintiff submits her affidavit, in which she avers that the vehicle in which she was a passenger had been stopped in traffic for approximately one minute when it was rear-ended by defendant's vehicle. Plaintiff also submits the uncertified police accident report generated from the accident, in which defendant reported to the responding officer that defendant mistakenly stepped on the gas instead of the brake pedal, causing him to strike the vehicle in which plaintiff was a passenger. Such statement is admissible as a party admission (see Liburd v Lulgjuraj, 156 A.D.3d 532 [1st Dept 2017]; Pivetz v Brusco, 145 A.D.3d 806 [2d Dept 2016]; Perm v Kirsh, 40 A.D.2d 814 [1st Dept 1972]; Jackson v Trust, 103 A.D.3d 851 [2d Dept 2013]; see also Delgado v Martinez Family Auto, 113 A.D.3d 426 [1st Dept 2014]).
''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 on the part of 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]).
The general rule regarding liability for rear-end accidents "has been applied when the front vehicle stops suddenly in slow-moving traffic; even if the sudden stop is repetitive; when the front vehicle, although in stop-and-go traffic, stopped while crossing an intersection; and when the front car stopped after having changed lanes" (Johnson v Phillips, 261 A.D.2d 269, 271 ). The sudden stop of the lead vehicle, without more (see Cabrera, supra}, "is generally insufficient to rebut the presumption of non-negligence on the part of the lead vehicle" (Woodley v Ramirez, 25 A.D.3d 451, 452 [1st Dept 2006] [citations omitted]).
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 established entitlement to partial summary judgment on the issue of defendant's negligence as a matter of law (see Bajrami v Twinkle Cab Corp., 147 A.D.3d 649 [ 1 st Dept 2017]).
Defendant does not submit evidence in admissible form in opposition, but argues that the motion is premature inasmuch as no discovery has taken place. However, plaintiff s motion cannot be considered as premature when "the information as to why defendant's car 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 relevant evidence during the discovery process is insufficient to deny summary judgment (see Castaneda, supra; Avant v Cepin Livery Corp., 74 A.D.3d 533 [ 1 st Dept 2010]; Planned Bldg. Servs., Inc. v S.L Green Realty Corp., 300 A.D.2d 89 [1st Dept 2002]). Defendant thus failed to rebut the presumption of his negligence (see Dattilo v Best Transp. Inc., 79 A.D.3d 432 [1st Dept 2010]). Furthermore, the outstanding discovery defendant seeks bears on plaintiffs culpable conduct, if any. Plaintiff, however, is not required to establish her freedom from comparative negligence to be entitled to judgment on the issue of defendant's negligence (see Rodriguez v City of New York,M N.Y.3d 312, 321 [2018]).
The court notes that plaintiff did not seek (and the court has not considered) dismissal of defendant's affirmative defenses of comparative fault (see CPLR 2114[a]).
Accordingly, it is
ORDERED, that plaintiff's motion for partial summary judgment on the issue of defendant's negligence is granted.
This constitutes the decision and order of the court.