On the record of this action, the plaintiff's motion for summary judgment only on the issue of liability in this hit-in-the-rear is denied. Plaintiff premises its motion, made before any examinations before trial have been taken, on the fact that the vehicle in the roadway had no break or warning lights on. The Court notes from the police report attached as an exhibit that the accident occurred at 2:51 P.M.

Without the benefit of discovery and depositions, the record is bereft of any indication of why the vehicle was in the middle of the road and for the period of time it remained there. From this Court's independent legal research, on the face of this paltry record, the granting of summary judgment would not be wise, reasonable, or prudent. See, Smalls v AJI Indus., Inc., 10 NY3d [*2]733 [2008] [no need for warning lights considering where vehicle was parked in a zebra-striped area]; Gregson v Terry, 35 AD3d 358 [2nd Dept. 2006] [summary judgment motion made after EBTs were conducted, and passenger testified at a deposition that there was a red warning light displayed]; Aguayo v Boston Scientific Corp., 31 Misc 3d 1237(A), 2011 WL 2200358, 2011 NY Slip Op 51022(U) [Sup Ct Queens County 2011] [McDonald, J.] [summary judgment granted regardless of whether brake lights were displayed]; accord, Fesel v Bryant, 26 Misc 3d 1218(A), 2010 WL 395945, 2009 NY Slip Op 52732 [Sup Ct Bronx County 2010] [Billings, J.].

The specific facts and circumstances of this case leave many unanswered questions for the undersigned. Especially on the paltry and nebulous state of facts developed thus far, the granting of the motion for summary judgment would do violence to the discovery function of litigation and would usurp the function of the trier of fact.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

July 7, 2011