Opinion
985 Index No. 804549/21 Case No. 2023–02100
11-09-2023
Milton Anthony WILSON, Plaintiff–Respondent, v. CITY OF NEW YORK et al., Defendants–Respondents, Pascal Kafando, Defendant–Appellant, Rasier–NY, LLC. et al., Defendants.
Marjorie E. Bornes, Brooklyn, for appellant. Gregory Spektor & Associates, P.C., Rosedale (Michael M. Szechter of counsel), for Milton Anthony Wilson, respondent. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for City of New York, Fire Department of the City of New York, and Israel Carrasquillo, respondents.
Marjorie E. Bornes, Brooklyn, for appellant.
Gregory Spektor & Associates, P.C., Rosedale (Michael M. Szechter of counsel), for Milton Anthony Wilson, respondent.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for City of New York, Fire Department of the City of New York, and Israel Carrasquillo, respondents.
Webber, J.P., Friedman, Gonza´lez, Kennedy, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered December 20, 2022, which denied defendant Pascal Kafando's motion for summary judgment dismissing the complaint and cross-claims against him, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff alleges as a result of defendants’ negligence he was injured when the vehicle in which he was a passenger and driven by defendant Kafando, an Uber driver, was struck in the rear by an ambulance owned by the City defendants and driven by defendant Israel Carrasquillo. Defendant Kafando demonstrated prima facie entitlement to summary judgment by submitting his affidavit averring that his vehicle was approaching a red light when it was struck in the rear by the ambulance, which established both the ambulance driver's negligence and Kafando's own lack of fault (see Reyes v. Gropper, 212 A.D.3d 565, 565, 183 N.Y.S.3d 369 [1st Dept. 2023] ; Miller v. DeSouza, 165 A.D.3d 550, 89 N.Y.S.3d 79 [1st Dept. 2018] ). Kafando's motion was also supported by a certified police accident report containing Carrasquillo's out-of-court statement, which may be admitted as a party admission or a declaration against interest (see Yassin v. Blackman, 188 A.D.3d 62, 65, 131 N.Y.S.3d 53 [2d Dept. 2020] ).
In opposition, neither plaintiff, the City, nor Carrasquillo offered any evidence of Kafando's negligence sufficient to raise a triable issue of fact (see Matias v. Grose, 123 A.D.3d 485, 486, 999 N.Y.S.2d 14 [1st Dept. 2014] ). The City's submission of plaintiff's 50–h hearing testimony, in which he stated that he believed Kafando's vehicle was stopped or stopping at a red light before it was rear-ended, does not raise a triable issue of fact as to whether Kafando was at fault (see Betances v. DJB Intl. Ltd., 210 A.D.3d 420, 420–421, 177 N.Y.S.3d 566 [1st Dept. 2022] ).
Kafando's summary judgment motion was not premature since the parties opposing the motion failed to identify any evidence in Kafando's possession that would support a nonnegligent cause for the rear-end collision. Further, both plaintiff and Carrasquillo had knowledge of the relevant facts (see Mirza v. Tribeca Auto. Inc., 189 A.D.3d 448, 137 N.Y.S.3d 13 [1st Dept. 2020] ; Avant v. Cepin Livery Corp., 74 A.D.3d 533, 534, 904 N.Y.S.2d 381 [1st Dept. 2010] ). Accordingly, Kafando is entitled to summary judgment dismissing the complaint and all cross-claims against him (see Francisco v. Schoepfer, 30 A.D.3d 275, 275, 817 N.Y.S.2d 52 [1st Dept. 2006] ; Woodley v. Ramirez, 25 A.D.3d 451, 452, 810 N.Y.S.2d 125 [1st Dept. 2006] ).