The following papers numbered 1 to 9 were read on this motion by the plaintiffs for an order pursuant to CPLR 3212(b) granting plaintiffs partial summary judgment on the issue of liability:

Papers

Notice of Motion-Affidavits-Exhibits.................1 - 3

Affirmation in Opposition-Affidavits-Exhibits........4 - 7

Reply Affirmation....................................8 - 9

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In this negligence action, the plaintiffs, Victor Hugo Aguayo and Carlos Vega, seek to recover damages for personal injuries that each sustained as a result of a motor vehicle accident that occurred at approximately 8:30 a.m. on September 1, 2010, between the plaintiffs' vehicle a Ford pick-up truck, and the Ford Suburban vehicle owned by Ari Fleet Lt and operated by [*2]defendant Stephen B. Deletto. Defendant Deletto was an employee of Boston Scientific Corporation, the leasee of the vehicle. The accident took place on the Bruckner Expressway, Bronx County, New York.

The plaintiff commenced this action by service of a summons and complaint on November 9, 2010. Issue was joined by service of defendants' answer dated January 12, 2011. Plaintiff now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and setting this matter down for assessment of damages.

In support of the motion, the plaintiff submits an affidavit from counsel, Scott L. Wiss, Esq.; a copy of the pleadings; plaintiff's verified bill of particulars; and an affidavit from each plaintiff.

In his affidavit dated November 23, 2010, plaintiff Victor Hugo Aguayo states that on September 1, 2010 he was the owner and operator of a vehicle that was "slowed in traffic on the Bruckner Expressway at or near its intersection with Westchester Avenue in Bronx County New York." Plaintiff, who was proceeding in the westbound lane, states that as he was "slowed down in traffic" he felt a heavy impact to the rear of his vehicle. He states "[I] was slowed down for at least fifteen seconds before the accident." The plaintiff contends that the defendant driver was negligent in the operation of his vehicle in striking the plaintiffs' vehicle in the rear. Plaintiff Carlos Vega also submits an affidavit dated November 2, 2010 in which he states that he was a passenger in the Aguayo vehicle when it was struck in the rear by defendants' vehicle.

Plaintiff's counsel contends that the accident was caused when defendant's vehicle was traveling too closely in violation of VTL § 1129 and that the driver failed to safely stop his vehicle prior to rear-ending the plaintiffs' vehicle. Counsel contends that the evidence indicates that the plaintiffs' vehicle was slowing down on the Bruckner Expressway when it was struck from behind by the defendant whose vehicle was following too closely, in violation of Vehicle and Traffic Law § 1129(a). Counsel contends, therefore, that the plaintiff is entitled to partial summary judgment as to liability because the defendant driver was solely responsible for causing the accident while the plaintiff driver was free from culpable conduct.

In opposition to the motion, defendants' counsel, Steven P. Orlowski, Esq., states that summary judgment is not appropriate as there are material questions of fact regarding the proximate cause of the accident and because there exists a non-negligent legal theory related to the cause of the accident and the comparative fault of the operator of the lead vehicle. In addition, defendant contends that the motion is premature in that the defendants have not yet had the opportunity to conduct [*3]depositions of the plaintiffs, to inspect the vehicle or to retain the services of an expert.

Specifically, counsel alleges that although there is no dispute that plaintiff's vehicle was slowing down in traffic when it was hit in the rear by the defendants' vehicle, that there is a non-negligent explanation for the collision that being that the rear brake lights on the plaintiffs' vehicle were tinted. Counsel submits photographs depicting what he contends to be tinting of the tail lights. Counsel contends that the tinting of the rear brake lights is a violation of Vehicle and Traffic Law§ 375.2(a)(3). Said section requires all vehicles to have at least two lighted lamps on the rear, one on each side, which lamps shall display a red light visible from the rear for a distance of at least one thousand feet. As such, counsel contends that it can be argued that the plaintiff was comparatively negligent as "the tinting of the tail lights reduced the visibility of the tail lights thereby resulting in a reduced reaction time that ultimately contributed to the accident." Counsel did not submit an affidavit from Mr. Deletto, the defendant-driver.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept. 2003]). It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 2d Dept. 2007]; Reed v. New York City Transit Authority, 299 AD2 330[2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004].

Here, plaintiff Aguayo stated in his affidavit that his vehicle was slowing down in traffic on the Bruckner Expressway when it was struck from behind by defendants' motor vehicle. Thus, the plaintiffs satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law on the issue of liability by demonstrating that their vehicle was slowing down in traffic when it was struck in the rear by the vehicle operated by defendant, Stephen B. Deletto (see Levine v [*4]Taylor, 268 AD2d 566 [2000]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to defendant to raise a triable issue of fact as to whether plaintiff was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]). This court finds that the defendant failed to submit evidence sufficient to raise a triable question of fact.

The explanation raised by defendants' counsel that the plaintiff's vehicle had tinted rear brake lights is insufficient to rebut the presumption of negligence created by the rear-end collision, and raise a triable issue of fact to defeat summary judgment (see Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept. 2004][defendant's testimony that she did not recall seeing brake lights or tail lights illuminated on the plaintiff's vehicle before the collision did not adequately rebut the inference of negligence]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003][the defendant failed to provide evidence sufficient to raise a triable question of fact as to whether the alleged malfunctioning brake lights on the plaintiff's vehicle proximately caused the accident]; Waters v City of New York, 278 AD2d 408 [2d Dept. 2000][defendant's statement that he did not observe any illuminated brake lights indicating that the truck was stopped is insufficient to establish a genuine issue of material fact precluding summary judgment]; also see Filippazzo v Santiago, 277 AD2d 419 [2d Dept. 2000]; Santarpia v. First Fid. Leasing Group, Inc., 275 AD2d 315 [2d Dept. 2000]; Lopez v. Minot, 258 AD2d 564 [2d Dept. 1999]).

Moreover, counsel's affirmation that the allegedly tinted brake lights was a violation of Vehicle and Traffic Law §375.2(a)(3) and that the tinting resulted in the defendant's reduced reaction time is speculative at best in the absence of a affidavit from the defendant attesting to that supposition (see Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Gomez v. Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005]; Rainford v Han, 18 AD3d 638 [2d Dept. 2005]). Counsel does not have knowledge of the facts and can only speculate as to the degree of tinting and whether it was a contributing factor to the accident.

The defendants' contention that the plaintiffs' motion for summary judgment is premature is without merit. The defendants failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Hanover Ins. Co. v Prakin,81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d dept. 2010]]; Peerless Ins. Co. v Micro Fibertek, [*5]Inc., 67 AD3d 978 [2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003]).

Thus, as the evidence in the record demonstrates that there are no triable issues of fact as to whether plaintiff may have borne comparative fault for the causation of the accident, and based on the foregoing, it is

ORDERED, that the plaintiff's motion is granted, and the plaintiffs VICTOR HUGO AGUAYO and CARLOS VEGA shall have summary judgment on the issue of liability as against the defendants BOSTON SCIENTIFIC CORPORATION, ARI FLEET LT and STEPHEN B. DELETTO and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that a copy of this order with notice of entry be served on the Clerk of the Trial Term Office and that upon compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for an assessment of damages.

Dated: May 23, 2011

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.