Elihu v Nicoleau
2019 NY Slip Op 05012 [173 AD3d 578]
June 20, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 31, 2019


[*1]
 Israel Elihu et al., Respondents,
v
Mireille Nicoleau et al., Appellants.

Law Offices of Richard M. Sands, P.C., Freeport (Richard M. Sands of counsel), for appellants.

The Law Offices of Stuart M. Kerner, P.C., Bronx (Stuart M. Kerner of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about August 6, 2018, which granted plaintiffs' separate motions for partial summary judgment on the issue of liability and for summary judgment dismissing the counterclaim against plaintiff Israel Elihu, unanimously affirmed, without costs.

The court providently exercised its discretion in entertaining and deciding plaintiffs' successive motions for summary judgment. The motions were made on the basis of new evidence (see Brown Harris Stevens Westhampton LLC v Gerber, 107 AD3d 526 [1st Dept 2013]; cf. Maggio v 24 W. 57 APF, LLC, 134 AD3d 621, 625-626 [1st Dept 2015]). In addition, they enhanced judicial efficiency, since they relieved the court and the movants of the burden of a plenary trial (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 [1st Dept 2012]; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [1st Dept 2002]).

The court also properly awarded plaintiffs partial summary judgment on the issue of liability, and correctly dismissed defendants' counterclaim against plaintiff Israel Elihu. Plaintiffs met their prima facie burden by demonstrating that they were stopped or stopping in stop-and-go traffic when they were rear-ended by the defendants' vehicle (see e.g. Bajrami v Twinkle Cab Corp., 147 AD3d 649 [1st Dept 2017]; Chowdhury v Matos, 118 AD3d 488 [1st Dept 2014]; Cartagena v Martinez, 112 AD3d 521 [1st Dept 2013]; Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999]). Defendants' allegation that plaintiffs' vehicle stopped suddenly in stop-and-go traffic is not a sufficient non-negligent explanation for the accident, and therefore fails to raise a triable issue of material fact in opposition (see e.g. Miller v DeSouza, 165 AD3d 550, 550 [1st Dept 2018]; Bajrami, 147 AD3d at 649; Chowdhury, 118 AD3d at 488; Johnson, 261 AD2d at 271). Concur—Friedman, J.P., Richter, Kahn, Singh, JJ.