This is a personal injury action in which plaintiff, KIRAN SHAH, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on February 20, 2010, at approximately 7:42 a.m. on Jericho Turnpike (Rte. 25), near the intersection with Rte. 110 in Suffolk County, New York.

At the time of the accident, plaintiff was operating his vehicle in an eastbound direction on Jericho Turnpike. The vehicle owned by defendant Patricia Mason and operated by [*2]defendant Taisha S. Mason was proceeding westbound on Jericho Turnpike when it suddenly swerved and crossed over the double lines into the plaintiff's lane of traffic colliding with the plaintiff's vehicle on the plaintiff's side of traffic. As a result of the impact the plaintiff allegedly injured her back.

Plaintiff commenced an action against the defendant by filing a summons and complaint on June 18, 2010. Issue was joined by service of defendants' verified answer dated August 11, 2010.

Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting the matter down for an inquest on damages. In support of the motion, the plaintiff submits an affidavit from counsel, Scott L. Wiss, Esq., a copy of the pleadings, an affidavit of facts from the plaintiff, and a copy of the police accident report (MV-104).

The police report contains the officer's description of the accident based upon his conversations with the drivers. His report states, "Op No.1(plaintiff) states Veh #2 swerved into his lane causing them to collide. Op #2 (defendant) states she is unsure of what happened." The police report also contains a handwritten statement from an independent eyewitness who observed the accident. The eyewitness, William Klipp states as follows:

"I was driving westbound on Rt. 25 in Huntington. I was behind a white Maxima NYEXA6378. I was behind this car for about 1 mile. The car was swerving from right lane to left lane when we passed Rt 110. The car swerved into eastbound lane and was in collision with the vehicle that was traveling eastbound. I called 911 and waited for the police to arrive."

The plaintiff also submits his own affidavit in support of the motion, dated May 8, 2011. Plaintiff states as follows:

"On February 20, 2010 at approximately 7:40 a.m., I was operating my 1995 Mitsubishi eastbound along Jericho Turnpike near its intersection with Route 110 in Huntington, New York. Jericho Turnpike is a two way roadway with two lanes for moving traffic in each direction. The defendant was traveling westbound along Jericho Turnpike and crossed over the double yellow lines into my lane of travel and struck my vehicle on my side of traffic...I saw the defendant as she came into the eastbound lanes and came across the double yellow lines and came onto my side of traffic. I had no time to react as I did not anticipate that she would cross over the double yellow lines into my side of [*3]traffic."

The plaintiff claims that he is entitled to summary judgment based upon the defendant's negligence in swerving her vehicle and crossing the yellow line into the opposite lane of traffic (citing Tsai v Zong-Ling Bon, 79 AD3d 1020 [2d Dept. 2010]). Plaintiff's counsel contends that the actions of Ms. Mason in crossing a double yellow line and driving into oncoming traffic was the sole proximate cause of the accident. Moreover, counsel contends that plaintiff, who was lawfully proceeding in his proper lane of traffic is not required to anticipate that a vehicle proceeding in the opposite direction will cross-over into oncoming traffic (citing Tsai v Zong-Ling Duh, 79 AD3d 1020 [2d Dept. 2010]; Wasson v Szafarski, 6 AD3d 1182 [4th Dept. 2004]).

In opposition to the motion, defendants' counsel, Valerie Katsorhis, Esq., submits her affidavit as well as a copy of the transcript of the deposition testimony of the plaintiff Kiran Shah. Counsel contends that the plaintiff has failed to make a prima facie case and also argues that material issues of fact exist with regard to the occurrence of the accident and who is responsible. Defendant's counsel, who has not provided an affidavit from the defendant driver, states that the defendant did not cross into plaintiff's lane of traffic. Further, counsel claims that the police accident report should not be considered as it constitutes inadmissible hearsay. Further, counsel, although attaching a copy of the plaintiff's deposition, states that the motion is premature as there is substantial discovery outstanding. Defendant's counsel, who has already had an opportunity to depose the plaintiff, states that the motion should be denied as there are essential issues of fact which are within the exclusive knowledge of the plaintiff.

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]).

Upon review of the plaintiff's motion, the defendant's opposition and the plaintiff's reply thereto this court finds as follows:

It is plaintiff's contention that defendant, Taisha S. Mason, was negligent as a matter of law in crossing over into the plaintiff's lane of traffic and that said negligence was the sole [*4]proximate cause of the accident. This Court agrees.

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his affidavit and the statement of the independent eyewitness both of whom stated that defendant's vehicle suddenly swerved into the opposite lane of traffic on Jericho Turnpike and then colliding with the plaintiff's vehicle which was traveling lawfully in the proper lane of traffic. The statement of the eyewitness annexed to the police report is admissible as a present sense exception to the hearsay rule (see Steinhaus v American Home Prods. Corp., 18 AD3d 312 [1st Dept. 2005]; Irizarry v Motor Vehicle Indemnification Corp., 287 AD2d 716 [2d Dept. 2001]; Taft v New York City Transit Auth., 193 AD2d 503 [1st Dept. 1993]). This evidence established, prima facie, that the defendant was negligent as a matter of law (see Ferebee v Amaya, 83 AD3d 997[2d Dept. 2011][a driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic]; Greenberg v Nolan, 53 AD3d 1065 [4th Dept. 2008]; Lee v Ratz, 19 AD3d 552 [2d Dept. 2005]; Snemyr v. W.A. Morales-Aparicio, 47 AD3d 70 [2d Dept. 2008][the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence showing that defendant violated Vehicle and Traffic Law § 1126 (a) by crossing over a double yellow line into an opposing lane of traffic, thereby causing the collision]; Foster v Sanchez, 17 AD3d 312 [2d Dept. 2005[crossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making]; Wasson v Szafarski, 6 AD3d 1182 [4th Dept. 2004]).

Further, the plaintiff established, prima facie, his entitlement to judgment as a matter of law as the evidence submitted in support of his motion demonstrated that the subject motor vehicle accident was not proximately caused by any negligence on the part of the plaintiff. The evidence submitted by the plaintiff in support of his motion for summary judgment established that he was faced with an emergency not of his own making, leaving him with only seconds to react and virtually no opportunity to avoid a collision (see Smit v Phillips, 74 AD3d 782[2d Dept. 2010] [a driver is not obligated to anticipate that a vehicle will go out of control and cross the roadway laterally, perpendicular to the flow of traffic on the roadway]; Eichenwald v Chaudhry, 17 AD3d 403 [2d Dept. 2005][a driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic]). [*5]

In opposition to the plaintiff's prima facie showing the defendant failed to raise any material questions of fact as to whether the plaintiff was comparatively negligent (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The defendant proffered only speculative assertions that the plaintiff may have been comparatively negligent which are unsupported by the testimony submitted with the motion. The affirmation of defendant's attorney containing speculation that the defendant did not cross over into plaintiff's lane of traffic is without evidentiary value. As stated above, the opposition papers do not include an affidavit from the defendant and the defendant has not yet been deposed. Further, the defendant failed to raise a triable issue of fact as to whether plaintiff's reaction to the emergency was unreasonable, or whether any negligence on his part prior to the cross-over contributed to the creation of the emergency (see Tsai v Zong-Ling Duh, 79 AD3d 1020 [2d Dept. 2010).

The defendant's contention that the plaintiff's motion for summary judgment is premature is without merit. The defendant 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, Inc., 67 AD3d 978 [2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003]). Further, the lack of disclosure does not excuse the failure of the party with personal knowledge to submit an affidavit in opposition to the motion (see Rainford v Han, 18 AD3d 638 [2d Dept. 2005] citing Niyazov v Bradford, 13 AD3d 501 [2d Dept. 2004]). Moreover, the plaintiff has been desposed. Defendant's counsel has submitted a copy of the plaintiff's deposition which is consistent with the plaintiff's affidavit of facts and does not raise any issues of comparative negligence.

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 hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiff, KIRAN SHAH, shall have partial summary judgment on the issue of liability against the defendants, TAISHA S. MASON and PATRICIA MASON, and the Clerk of Court is authorized to enter judgment accordingly; and it is further, [*6]

ORDERED, 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: September 28, 2011

Long Island City, NY

ROBERT J. MCDONALDJ.S.C.