The following papers numbered 1 to 18 were read on this motion by plaintiff on the counterclaim, MOHAMMED M. MIA, and the cross-motion by the plaintiffs MOHAMMED M. MIA, TASPIA MIA and SHAHIN MIA for an order pursuant to CPLR 3212(b) dismissing the defendant's counterclaim and granting plaintiffs partial summary judgment on the issue of liability and setting the matter down for a trial on damages:

Papers

Numbered

Plaintiff on the Counterclaim's Notice of Motion ..........1 - 6

Plaintiff's Cross-Motion...................................7 - 9

Defendant's Affirmation in Opposition to Motion

and Cross-Motion..........................................10 - 12

Plaintiff on the Counterclaim's Reply Affirmation.........13 - 15

Plaintiff's Affirmation in Reply..........................16 - 18

In this action for negligence, the plaintiffs, MOHAMMED M. MIA, TASPIA MIA and SHAHIN MIA, seek to recover damages for personal injuries they each sustained as a result of a motor [*2]vehicle accident that occurred on August 9, 2009. The motor vehicle accident took place on Hillside Avenue between 189th and 190th Streets in Queens County, New York. Plaintiffs allege that they each sustained injuries when their vehicle, which was stopped in traffic, was struck in the rear by the vehicle owned and operated by defendant Jacqueline Singh.

This action was commenced by the plaintiff by the filing of a summons and complaint on July 2, 2010. Issue was joined by service of defendant's verified answer with counterclaim against Mohammed M. Mia dated August 31, 2010. A reply to counterclaim was served by the plaintiff on the counterclaim on April 11, 2011 A note of issue was filed on May 31, 2012. This matter is presently on the calendar of the trial scheduling part for June 4, 2010.

Plaintiff on the counterclaim now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the defendant's counterclaim. Plaintiffs cross-move for an order granting summary judgment on the issue of liability and setting this matter down for a trial on damages.

In support of the motion, the plaintiff submits an affirmation from counsel, Tracy Morgan, Esq; a copy of the pleadings; a copy of the note of issue, copies of the deposition testimony of the plaintiff Mohammed M. Mia, plaintiff, Taspia Mia and defendant, Jacqueline Singh.

In his examination before trial, taken on August 10, 2012, plaintiff, Mohammed Mia, age 59, testified that he was involved in a motor vehicle accident in the evening of August 9, 2008. He stated that he was coming from his home in Floral Park and was traveling westbound in the left lane of Hillside Avenue with his wife, daughter Tapia, age 17, and his son. He testified that his wife and son were seated in the rear passenger seat and his daughter was seated in the front passenger seat. They were proceeding to a grocery store at 168th Street. As he passed 189th Street going towards 190th Street he observed that the vehicle in front of his had its brakes light on and came to a sudden stop. At that time he was traveling 10 - 15 miles per hour and he was able to bring his vehicle to a slow stop. After being stopped for 6 or 7 seconds his vehicle was struck in the rear with a hard impact by the Jeep behind him. His vehicle was pushed forward but did not strike the vehicle in front of his. He stated that the vehicle in front of his came to a sudden stop because there was a hole in the road and that his vehicle was also partially pushed into the hole. [*3]

Taspia Mia, the plaintiff's daughter, age 20, testified at an examination before trial on August 10, 2012. She stated that on the date of the accident she was a front seat passenger in the vehicle being operated by her father Mohammed. She did not remember her brother being in the car at the time. She stated her father was operating the vehicle in the left lane of Hillside Avenue. She stated that the vehicle traveling in front of theirs came to a gradual stop between 190th and 189th Streets. She stated that her father brought his vehicle to a gradual stop and after approximately five seconds her vehicle was struck in the rear by defendant's Jeep and was pushed about 20 feet into a pothole. After the accident she called the police on her cellphone.

Defendant, Jacqueline Singh, age 42, testified at an examination before trial on February 15,2013. She stated that on the date of the accident she was driving a black 2004 Ford Explorer. She stated that she was coming from her aunt's house on 210th Street and Hillside and was going home. She stated that as she was traveling on Hillside Avenue she hit the plaintiff's stopped vehicle in the rear. She stated that she was stopped at a light on 196th Street when the car in front of her turned right onto 196th Street and she then observed the plaintiff's vehicle that was one car length in front of her. She observed the brake lights on the plaintiff's vehicle and stated that the plaintiff's vehicle came to an abrupt stop. She stated that she tried to change lanes but hit the vehicle in front of her with a light impact. When the police arrived she stated the vehicle in front of her stopped abruptly.

The plaintiff on the counterclaim contends that the defendant driver was negligent in the operation of her vehicle in striking the plaintiff's vehicle in the rear. Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant driver in that her vehicle was traveling too closely in violation of VTL § 1129(a) and that the driver failed to safely stop her vehicle prior to rear-ending the plaintiff's vehicle. Counsel contends that the evidence indicates that the plaintiff's vehicle was lawfully stopped on Hillside Avenue when it was struck from behind by the defendant's vehicle. Counsel contends, therefore, that the plaintiff on the counterclaim is entitled to summary judgment dismissing the defendant's counterclaim as to liability because the defendant, who saw the plaintiff's brake lights go on but because she was traveling only one car length behind plaintiff's vehicle could not stop her vehicle in time. Plaintiff alleges that the defendant was solely responsible for causing the accident while the plaintiff was free from culpable conduct. [*4]

Plaintiff on the cross-claim also move for summary judgment stating that the rear-end collision which resulted in the plaintiffs' injuries was the result of the negligence of the defendant. Counsel claims that the defendant failed to keep a safe distance from the plaintiffs' vehicle and, as such, violated VTL § 1129(a) which creates a duty to maintain a safe distance between vehicles. Counsel states that the failure maintain a safe distance in the absence of a non-negligent explanation constitutes negligence as a matter of law (citing Silber Surrey Cadillac Limousine Service, 109 AD2d 833 {2d Dept. 1985]). Further, counsel asserts that a claim of a sudden stop by the lead vehicle standing alone is insufficient to rebut the presumption of negligence (citing Hackney v Monge, 103 AD3d 844 [2d Dept. 2013] [in the absence of any evidence that the defendant was maintaining a reasonably safe distance and speed behind the plaintiff's vehicle, as required by Vehicle and Traffic Law § 1129(a), his claim that the plaintiff's vehicle came to a sudden stop was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision]; also see Hearn v Manzolillo, 103 AD3d 689[2d Dept 2013]).

In opposition, defendant's counsel, Robert J. Valenti, Esq. contends that a question of fact exists as to the happening of the accident as the defendant testified that the plaintiff's vehicle came to a sudden, abrupt stop in front of the defendant's vehicle. He states that based upon the testimony of the defendant it appears that the abrupt stop allegedly made by plaintiff Mohammed Mia was the cause of the accident.

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, [*5]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 testified that his vehicle was completely stopped on Hillside Avenue when it was struck from behind by defendant's motor vehicle. The plaintiff testified that his vehicle came to a gradual stop when the vehicle in front of his stopped due to a pothole in the road. Thus, the plaintiff satisfied his prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability by demonstrating that his vehicle was stopped when it was struck in the rear by the vehicle operated by defendant Jamie L. Abish (see Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 AD3d 1154 [2d Dept. 2007]; Levine v Taylor, 268 AD2d 566 [2d Dept. 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 his 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 as to any negligence on the part of plaintiff or to provide a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005]). If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736 [2d Dept. 2007]). The evidence demonstrated that the plaintiff, who was in a stopped vehicle, operated his vehicle in a nonnegligent manner and no evidence was presented to show that he contributed to the happening of the injury-producing event (see Aikens-Hobson v. Bruno, 2012 NY Slip Op 5604 [2d Dept. 2012]; Daramboukas v Samlidis, 84 AD3d 719 [2d Dept. 2011]; Franco v Breceus, 70 AD3d 767[2d Dept. 2010]; Shirman v Lawal, 69 AD3d 838 [2d Dept. 2010]; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2d Dept. 2007]). Further, although defendant told the police officer at the scene that the accident was the result of plaintiff braking or stopping suddenly, this does not explain her failure to maintain a safe distance from the vehicle in front of her [see Dicturel v Dukureh,71 AD3d 558 [1st Dept. 2010]; Shirman v Lawal,69 AD3d 838 [*6][2d Dept. 2010]; Lampkin v Chan,68 AD3d 727 [2d Dept. 2009]; Zdenek v Safety Consultants, Inc.,63 AD3d 918 [2d Dept. 2009]). The defendant's argument that the plaintiff's vehicle may have stopped short is not sufficient to provide a non-negligent explanation for the rear-end collision (see Plummer v Nourddine, 82 AD3d 1069 [2d Dept. 2011][the mere assertion that the respondents' (vehicle) came to a sudden stop while traveling in heavy traffic was insufficient to raise a triable issue of fact}]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]; Ramirez v Konstanzer, 61 AD3d 837 [2d Dept. 2009]). Defendant testified that she was only one car length behind the plaintiff's vehicle when she saw his brake light rather than attempting to stop she attempted to change lanes but she swerved back behind the plaintiff's vehicle and struck his vehicle in the rear. Thus defendant failed to maintain a reasonably safe distance and failed to exercise reasonable care to avoid colliding with the other vehicle {see Hackney v Monge, 103 AD3d 844 [2d Dept. 2013]; Hearn v Manzolillo, 103 AD3d 689 [2d Dept. 2013]; Taing v Drewery, 100 ADd 740 [2d Dept. 2012]; Byrne v Calogero, 96 AD3d 704 [2d Dept. 2012]; Franco v Breceus, 70 AD3d 767 [2d Dept. 2010]).

Accordingly, this court finds that in opposition to plaintiff's motion, defendant failed to submit any evidence sufficient to raise a triable issue of fact (see Arias v Rosario, 52 AD3d 551 [2d Dept. 2008]; Smith v Seskin, 49 AD3d 628 [2d Dept.2008]; Campbell v City of Yonkers, 37 AD3d 750 [2d Dept. 2007]). As the evidence in the record demonstrates that the defendant failed to provide a non-negligent explanation for the collision and as no triable issues of fact have been put forth 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 counterclaim contained in the defendant's answer against plaintiff Mohammed Mia is dismissed, and it is further,

ORDERED, that the plaintiffs' motion is granted, and the plaintiffs, MOHAMMED M. MIA, TASPIA MIA and SHAHIN MIA, shall have partial summary judgment on the issue of liability against the defendant, Jacqueline Singh, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, this action remains on the trial calendar of the Court for a trial as to damages.

Dated: June 4, 2013 [*7]

Long Island City, N.Y

ROBERT J. MCDONALDJ.S.C.