The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 52, 55, 56, 57, 58, 59, 60 were read on this motion to/for JUDGMENT - SUMMARY.

ORDERED that plaintiff's motion pursuant to CPLR 3212 for partial summary judgment as to liability against defendants is granted to the extent that the court finds that plaintiff made a prima facie showing that defendants The BGB INC. ("BGB") and Raymond D. Powe were negligent in causing the subject rear-end collision (which occurred on June 9, 2022), and plaintiff was free from negligence with respect to the accident and bears no culpable conduct/comparative fault.

In support of the motion, plaintiff supplied his deposition transcript, defendants' [*2]deposition transcripts, and the video footage from his vehicle showing the happening of the accident. Plaintiff testified that he was driving on the highway at approximately 50-55 mph when he was struck in the rear by defendants' vehicle. Plaintiff testified he was maintaining a steady rate of speed and did not step on the brakes prior to the impact. Defendant driver Raymond Powe admitted striking plaintiff's vehicle in the rear. He testified that he did not recall the speed of his vehicle at the time of the accident and did not recall what lane he was traveling in, or if plaintiff was changing lanes or had applied the brakes prior to the impact.

The video footage shows the impact by defendants' vehicle to the rear of plaintiff's vehicle. It also shows that shortly before the impact, defendants' vehicle was changing lanes and/or was straddling two lanes. It further shows that plaintiff's vehicle did not brake until after the impact. The video footage from the front of plaintiff's vehicle shows plaintiff driving at a steady speed prior to the impact and within the same lane of travel for some time prior to the impact.

It is well settled that "[d]rivers must maintain safe distances between their cars and cars in front of them and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages" (Johnson v. Phillips, 261 AD2d 269, 271 [1st Dept 1999]; see also Vehicle and Traffic Law ["VTL" 1129 [a]^[FN1] ). A conclusory assertion that the vehicle stopped suddenly is insufficient to satisfy the duty of explanation (see Corbly v. Butler, 226 AD2d 418, 419 [1st Dept 1996]; Cruz v Lise, 123 AD3d 514, 514 [1st Dept 2014]). Here, plaintiff's testimony and the video footage of the accident establish that defendants were negligent and plaintiff was free from negligence with respect to the accident. The evidence shows that plaintiff was traveling at a steady speed and not slowing down or stopping, providing no reasonable excuse for defendant to strike the vehicle in the rear.

In opposition, defendants failed to submit proof sufficient to raise triable issue of fact by presenting a nonnegligent explanation for striking plaintiff's vehicle in the rear (see Agramonte v. City of New York, 288 AD2d 75, 76 [1st Dept 2001]; Cruz v Lise, 123 AD3d 514, 514 [1st Dept 2014]). Defendants rely on an unsigned and unsworn incident report prepared in connection with the subject accident that contained the statement that "Raymond Powe was driving behind Mr. Zidek's vehicle when Mr. Zidek made a sudden stop to merge into the left lane. Raymond used the brakes to avoid hitting the vehicle in front of him however, he did collide due to rain and slippery conditions". The court finds this to constitute inadmissible hearsay (see Johnson v Phillips, 261 AD2d at 270-71; Rue v Stokes, 191 AD2d 245, 246-47 [1st Dept 1993]).

Contrary to defendants' argument, defendants failed to lay a proper foundation to establish that the incident report was a business record under CPLR 4518 (a).^[FN2] Specifically, at [*3]her deposition, Jessica Sillaro, the owner of defendant BGB, was shown the incident report. She testified that she did not know who prepared the report, did not know where the information contained in the report came from, and could not attest to the accuracy of the statement contained in the report. She also testified that she had no recollection of any conversation about the accident with defendant Powe and stated that she had very little knowledge of the accident. While Ms. Sillaro testified "yes, we do these any time that there is an incident," she failed to testify as to the actual timing of when this incident report for the subject accident was prepared (i.e. that it was made "at the time of the...occurrence or event, or within a reasonable time thereafter" CPLR 4518 [a]). Moreover, it was not demonstrated that the report was made in the regular course of business, "reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business" (People v Cratsley, 86 NY2d 81, 88 [1995]). The testimony by Ms. Sillaro failed to lay the proper foundation for a business record to constitute an exception to the rule against hearsay.

Moreover, the incident report was undermined by defendant Powe's deposition testimony. Powe was shown the incident report and testified that he had not seen the document prior to his deposition. When asked if he told anyone that the vehicle in front of him had made a sudden stop to merge into the left lane, he responded, "I don't recall that." He also did not recall telling the company that or recall if the other vehicle actually did make a sudden stop to merge into the left lane. He also did not recall telling anyone that he used the brakes to avoid hitting the vehicle in front of him and did not recall if in fact, he did that on the date of the accident.

Additionally, the statements in the incident report are wholly refuted and incredible as a matter of law (see Carthen v Sherman, 169 AD3d 416, 417-18 [1st Dept 2019]). The video footage clearly shows that plaintiff's vehicle did not stop prior to the impact to change lanes. In fact, the video footage supports that plaintiff did not utilize the brakes until after the impact.

It is further

ORDERED that defendants' affirmative defense of comparative negligence by plaintiff is therefore dismissed.