The following papers numbered 1 to 15 were read on this motion by plaintiff on the counterclaim NAM K. PAEK, for an order pursuant to CPLR 3212(b) granting summary judgment on the issue of liability and dismissing the defendant's counterclaim; and the amended cross-motion of plaintiffs NAM K. PAEK and HO JUNG PAEK for an order pursuant to CPLR 3212 granting plaintiff partial summary judgment on the issue of liability and setting the matter down for a trial on damages; and for an order pursuant to CPLR 3126 striking the answer of the defendant for failing to appear for a court-ordered examination before trial:

PapersNumbered

Plaintiff on the Counterclaim's Notice of Motion......1 - 7

Plaintiffs' Amended Notice of Cross-Motion............8 - 12

Defendant's Affirmation in Opposition................13 - 15

In this negligence action, the plaintiffs, NAM K. PAEK and HUNG JO PAEK, seek to recover damages for personal injuries they each allegedly sustained as a result of a motor vehicle accident [*2]that occurred on February 19, 2011, when the plaintiffs' vehicle, that was stopped at a red traffic signal, was struck in the rear by the motor vehicle owned and operated by the defendant, TING T. LIN. The accident took place on Main Street, in front of CUNY Law School, Flushing, Queens County, New York.

The plaintiffs commenced this action by filing a summons and complaint on May 23, 2011. Issue was joined by service of defendant's verified answer with counterclaim dated June 1, 2011. Plaintiff served an amended reply to counterclaim dated January 4, 2012. In its counterclaim, the defendant alleges that the plaintiff-driver Nam K. Paek, was at fault for causing the accident and is liable for damages caused to the co-plaintiff. Plaintiff filed a note of issue on December 20, 2012. This matter is presently on the calendar of the Trial Scheduling Part for November 12, 2013.

Plaintiff on the counterclaim, Nam K. Paek, moves for summary judgment dismissing the counterclaim on the ground that plaintiff was not negligent as a matter of law and bears no responsibility for causing the accident. In support of the motion, plaintiff on the counterclaim submits an affirmation from counsel, Tracy Morgan, Esq., a copy of the pleadings; and copies of the transcripts of plaintiffs Nam K. Paek and Ho Jung Paek. The defendant is not in contact with his attorney and failed to appear for a court-ordered deposition.

Plaintiffs cross-move for an order striking the defendant's complaint for failure to appear for an examination before trial and for an order granting plaintiffs' partial summary judgment on the issue of liability and setting the matter down for a trial on damages only. Plaintiff's counsel, David J. Lawrence, Esq., claims that the defendant wilfully and contumaciously failed to appear on ten scheduled dates for an examination before trial including, March 29, 2011, September 7, 2012, October 5, 2012, November 16, 2012, January 9, 2013, March 1, 2013, March 18, 2013, April 15, 2013 and May 10, 2013.

At his examination before trial, which took place on October 5, 2012, Nam K. Paek, age 68, stated that he was involved in a motor vehicle accident on February 19, 2011. At that time he was operating a 2005 Nissan Sentra on Main Street near CUNY Law School. His wife, Ho Jung Paek, was a front seat passenger. He stated that his vehicle was completely stopped at a red traffic signal for approximately 3 - 5 seconds when his vehicle was struck in the rear by the vehicle operated by the defendant, Ting T. Lin. When the police arrived at the scene he told the Officer that he was waiting at the red light when his vehicle was struck [*3]from behind. As a result of the impact he allegedly sustained injuries to his back, neck, hip and shoulder.

Ho Jung Paek, age 67, wife of defendant, Nam Paek, also testified at an examination before trial on October 5, 2012. She stated that on the date of the subject accident she was a front seat passenger in the vehicle being operated by her husband on Main Street in Flushing. She stated that her husband's car was completely stopped at a red traffic signal in front of CUNY Law School when it was struck in the rear. She stated that as a result of the impact she struck her right knee on the dashboard. She sustained a tear in her right knee for which she underwent arthroscopic surgery on April 29, 2011.

The defendant driver did not appear on several occasions for a court-ordered examination before trial.

Plaintiff's counsel and counsel for the plaintiff on the counterclaim contend that the accident was caused solely by the negligence of the defendant, Ting T. Lin, in that his 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 plaintiffs' 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 was free from culpable conduct. Counsel for plaintiff on the counterclaim contends plaintiff on the counterclaim is entitled to summary judgment dismissing defendant's counterclaim because the defendant driver was solely responsible for causing the accident.

In opposition to the motion, defendant's counsel, Joseph T. Schnurr, Esq., did not submit an affidavit from the defendant nor has defendant proffered any allegations of fact which would contradict the plaintiffs' version of the accident. Counsel only opposes that branch of the cross-motion seeking to strike the defendant's answer. Counsel states that his office has lost contact with the defendant and that defendant failed to appear for his deposition due to a breakdown in communication. Counsel states that defendant agrees to be produced for a deposition within 20 days before trial or be precluded from testifying at the trial in this matter.

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 [*4]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 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 AD2d 330 [2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d 787 [2d Dept. 2004]).

Here, both plaintiffs testified that their vehicle was lawfully stopped at a red traffic signal when it was suddenly struck from behind by defendant's vehicle. Thus, the plaintiffs satisfied their 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]; 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 the plaintiffs' vehicle 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, who failed to appear for an examination before trial and did not submit an affidavit in opposition to the motion, failed to provide evidence as to a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Bernier v Torres, 79 AD3d 776 [2d Dept. 2010]; Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]; Garner v Chevalier Transp. Corp, 58 AD3d 802 [2d Dept. 2009]; Kimyagarov v Nixon Taxi Corp, 45 AD3d 736 [2d Dept. 2007]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005][the defendants failed to raise a triable issue of fact by only interposing an affirmation of their attorney who lacked knowledge of the facts]).

In addition, the right of an innocent passenger to summary [*5]judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212 [g]; Anzel v Pistorino, 962 NYS2d 700 [2d Dept. 2013]; Medina v Rodriguez, 92 AD3d 850 [2d Dept. 2012]; Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [1st Dept. 2001]; Johnson v Phillips, 261 AD2d 269 [1st Dept. 1999]).

That branch of the plaintiff's cross-motion for an order striking the defendant's answer for wilfully and contumaciously failing to appear for an examination before trial on ten separate scheduled dates is granted. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery coupled with inadequate explanations for the failures to comply (see Sadoyan v Castro, 102 AD3d 666 [2d Dept. 2013];, Duncan v. Hebb, 47 AD3d 871 [2d Dept. 2008]). Here, the explanation offered by the defendant for the repeated failure to comply with the court orders to appear for a deposition, to wit that his attorneys lost contact with him is not a sufficiently reasonable excuse (see Almonte v Pichardo, 105 AD3d 687 [2d Dept. 2013]; MacDonald v Leif, 89 AD3d 995 [2d Dept. 2011]).

Accordingly, for the reasons stated above, it is hereby

ORDERED, that the motion by plaintiff on the counterclaim for an order granting summary judgment dismissing the defendant's counterclaim is granted, and it is further,

ORDERED, that the plaintiffs' cross-motion is granted, and the plaintiffs, NAM K PAEK and HO JUNG PAEK, shall have partial summary judgment on the issue of liability against the defendant, TING T. LIN, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that the branch of the cross-motion to strike the defendant's answer on the issue of liability is granted pursuant to CPLR 3216 for failure to appear for a court ordered deposition, and it is further,

ORDERED, this action remains on the calendar of the Trial Scheduling Part on November 12, 2013 for a trial on damages.

Dated: July 30, 2013 [*6]

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.