The following papers numbered 1 to 12 were read on this motion by plaintiff, CHETANABEN PATEL, for an order pursuant to CPLR 3212(b) granting plaintiff partial summary judgment on the issue of liability:

Papers

Notice of Motion-Affidavits-Exhibits.......................1 - 5

Defendant's Affirmation in Opposition-Affidavits...........6 - 9

Plaintiff's Reply Affirmation.............................10 - 12 _________________________________________________________________

In this negligence action, the plaintiff, CHETANABEN PATEL, seeks to recover damages for personal injuries that she sustained as a result of a motor vehicle accident that occurred on November 20, 2009, between the plaintiff's vehicle and the vehicle owned by defendant RAVINDER SINGH GILL and operated by defendant, SAROOP SINGH SANDHU. The accident took place on the westbound lanes of the Grand Central Parkway at or near the intersection of 188th Street in Queens County, New York.

The plaintiff commenced this action by filing a summons and complaint on January 6, 2011. Issue was joined by service of defendants' verified answer dated January 14, 2011. Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial [*2]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 affirmation from counsel, Theresa J. Viera, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; an affidavit of merit from the plaintiff; a copy of the police accident report; and a copy of the MV-104 filed by defendant Saroop Singh Sandhu.

In her affidavit dated May 23, 2011, plaintiff CHETANABEN PATEL, states that on November 20, 2009, at approximately 11:30 a.m.:

"I was the operator of a motor vehicle, traveling westbound on the Grand Central Parkway. I stopped my vehicle, in traffic, at or about the exit for 188th Street, Queens, New York when it was struck in the rear by defendants' taxi cab. My vehicle was stopped for approximately 15 seconds prior to the impact. The Grand Central Parkway at this location, has three lanes for straight moving traffic. My vehicle at the time of the impact, was in the right lane. On the date of this accident it was cloudy and the roadway was wet. At the location of the accident the roadway was straight and level. The accident was caused solely by the negligence of SAROOP SINGH SANDHU in the operation of his motor vehicle." The plaintiff claims that she sustained multiple injuries as a result of the accident and she contends that the defendant driver was negligent in the operation of his vehicle in striking her vehicle in the rear.

The police accident report states with respect to the accident description:

"At t/p/o operator of veh No.1 (defendant) states that he did not slow down in time when vehicle #2 (plaintiff) braked in front of him. Oper Veh #2 removed to Booth Memorial Hospital and vehicle was towed..." The police report also notes that the road surface was wet.

Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant in that the defendant's vehicle was traveling too closely in violation of VTL § 1129 and the defendant driver failed to safely stop his vehicle prior to rear-ending the plaintiff's vehicle. 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. [*3]

In opposition to the motion, defendant's counsel, Artur Pogorzelski, Esq., submits the MV-104 Report filed by defendant driver, Sandhu. In his MV-104 report, dated November 20, 2009 Sandhu states,

"Veh # 1(defendant) westbound Grand central parkway in right lane moving straight. Veh #1 looked through mirror to change lane but veh #2 (plaintiff) suddenly stopped in front of # 1 causing # 1 to make contact with # 2 on rear. Driver # 1 tried to brake but road was wet and could [not] avoid it."

The defendant also submits an affidavit in opposition to the motion dated August 19, 2011 in which he states with respect to the causation of the accident:

"On 11/20/2009 I operated medallion cab plate 7A38A. I was alone traveling westbound on the Grand central Parkway, Queens. GCP is a two way thoroughfare with three lanes for driving in opposite directions. I was in the right lane. Traffic was very heavy and the weather bad because it rained earlier and the roadway was wet and slippery. When I was about 4-5 hundred feet west of the exit at 188th Street traffic ahead stopped. I applied my brake in an effort to stop with traffic. However, my cab skidded on the wet and slippery roadway, and I rear-ended vehicle No. 2 (plaintiff's vehicle). The impact was light...The accident was caused due to the slippery and wet road conditions."

Counsel claims that the defendant's MV-104 and his affidavit are sufficient to rebut plaintiff's prima facie showing of negligence and provide non-negligent explanations for the rear-end collision. Counsel claims that defendant's statement that the plaintiff stopped short coupled with the fact that when he tried to brake, his vehicle unavoidably skidded on the wet roadway, is a sufficient explanation to rebut the inference of negligence and to excuse the rear-end collision.

In addition, counsel states that the plaintiff's motion for summary judgment is premature as depositions of the parties have not yet been conducted and discovery is still outstanding. Counsel contends that the defendant has not yet had an opportunity to depose the plaintiff about the facts and circumstances of the accident and that "the process of discovery might reveal facts that would support defendant's contention that the sudden stop of plaintiff's vehicle caused the accident in question."

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material [*4]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 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 Parra v Hughes, 79 AD3d 1113 [2d Dept. 2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489 [2d Dept. 2010]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 [2d Dept. 2007]; Velazquez v Denton Limo, Inc., 7 AD3d 787 [2d Dept. 2004]; Reed v New York City Transit Authority, 299 AD2d 330 [2d Dept. 2002]).

Here, plaintiff stated in her affidavit that her vehicle was stopped while waiting in traffic for approximately 15 seconds when it was suddenly struck from behind by defendant's vehicle. Thus, the plaintiff satisfied her prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability (see Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]; Vavoulis v Adler, 43 AD3d 1154 [2d Dept. 2007]; Levine v 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 provide evidence as to a non-negligent explanation for the accident sufficient to raise a triable question of fact.

In his statement to the police which was recorded on the police accident report defendant stated that plaintiff's vehicle braked in front of him and he did not slow down in time. In his own MV-104 report he stated that he looked in his rear view mirror to change lanes and plaintiff's vehicle suddenly stopped. He stated that he tried to stop but he could not avoid the collision because the roads were wet. In his affidavit in [*5]opposition to the motion he states that he observed traffic stopped on the parkway from 400 feet away and attempted to stop his vehicle but it skidded on the wet roadway causing him to collide with plaintiff's vehicle. In the affidavit there is no mention of a sudden stop.

In this regard the Appellate Division has held that the mere assertion that the lead vehicle came to a sudden stop while traveling in heavy traffic is insufficient to raise a triable issue of fact (see Plummer v Nourddine, 82 AD3d 1069 [2d Dept. 2011]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]; Jumandeo v Franks, 56 AD3d 614[2d Dept. 2008]). In Plummer, supra., the Court also held that the inference of negligence is also not rebutted by the mere assertion that defendant's vehicle was unable to stop on a wet roadway (citing Volpe v Limoncelli, 74 AD3d 795 [2d Dept. 2010]). "Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead (see Vehicle and Traffic Law § 1129 [a]; Faul v. Reilly, 29 AD3d 626 [2d Dept. 2006] [the deposition testimony of the defendant that he saw the stopped vehicle in which the plaintiff was a passenger and applied his brakes but that his vehicle nevertheless skidded into the stopped vehicle due to road conditions was insufficient to rebut the inference that he was negligent]; Shamah v Richmond County Ambulance Serv., 279 AD2d 564 [2d Dept. 2001]). Thus, drivers must maintain safe distances between their cars and the cars in front of them in light of the traffic conditions, including stopped vehicles and wet roads.

Here, based upon the heavy traffic conditions on the parkway and the fact that the road was wet, defendant had a duty to maintain a safe distance based upon the traffic and the prevailing condition of the highway. The record indicates that the plaintiff did not come to a sudden unexplained stop, but rather, was stopped on the parkway due to heavy traffic conditions. In addition, the defendant's vehicle did not suffer an unavoidable skid on wet pavement, but rather, based upon the wet roadway, the defendant should have left sufficient room between his car and the cars in front.

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 [*6]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]).

Thus, as the defendant failed to proffer sufficient evidence to rebut the inference of his own negligence and to raise a triable issue of fact in this regard and 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 plaintiff, CHETANABEN PATEL, shall have partial summary judgment on the issue of liability against the defendants, RAVINDER SINGH GILL and SAROOP SINGH SANDHU, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

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: October 18, 2011

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.