The following papers numbered 1 to 13 were read on this motion by plaintiff, JAIME RAMIREZ, for an order pursuant to CPLR 3212(b), granting plaintiff partial summary judgment on the issue of liability and setting this matter down for a trial on damages only:

PapersNumbered

Notice of Motion-Affidavits-Exhibits...................1 - 6

Defendant's Affirmation in Opposition..................7 - 10

Reply Affirmation......................................11 -13

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In this negligence action, the plaintiff, Jaime Ramirez, seeks to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred at approximately 5:15 a.m. on April 2, 2011, between the plaintiff's vehicle and the vehicle owned by Psilos Cab Corp., and operated by defendant Modobbir Miah. The accident took place [*2]on the southbound West Side Highway (also known as 12th Avenue) at or near its intersection with West 54th Street in Manhattan, New York. At the time of the accident, plaintiff, Jaime Ramirez, alleges that he was at a complete stop waiting at a red traffic signal when his vehicle was struck in the rear by the vehicle operated by defendant Modobbir Miah. The plaintiff allegedly sustained serious injuries as a result of the impact.

The plaintiff commenced this action by filing a summons and complaint on February 8, 2013. Issue was joined by service of defendants' verified answer dated April 2, 2013. Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial 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, Brian L. Gotlieb, Esq., a copy of the pleadings, a copy of the plaintiff's verified bill of particulars, a copy of the police accident report (MV-104); and an affidavit of facts from the plaintiff dated December 4, 2013.

In the police accident report the Officer, who did not witness the accident describes the accident as follows:

"Vehicle #1 (plaintiff) states that while stopped at traffic signal, vehicle #2 (defendant) struck vehicle #1 from behind. Vehicle #2 states that Vehicle # 1 was stopped at a traffic signal and vehicle #2 struck the rear of vehicle #1."

In his affidavit, the plaintiff, age 47, states that on April 2, 2011, at approximately 5:15 a.m., he was involved in a two car motor vehicle accident in which he was rear ended by the vehicle owned by Psilos Cab Corp. and operated by Modobbir Miah. He states that he was driving his vehicle with the permission of its owner, Broadview Networks, at or near the intersection of 12th Avenue and West 54 Street in Manhattan. He states that,

"prior to my being rear-ended by defendants' vehicle, I had already been at a full and complete stop for at least ten (10) full seconds. The impact to the rear of my vehicle was very heavy and it caused my vehicle to be pushed forward even though my foot was already on the brake."

Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant driver in that his vehicle was traveling too closely in violation of VTL § 1129 and that the defendant driver failed to bring his vehicle to a stop prior to rear-ending the plaintiff's vehicle. Counsel contends, [*3]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, whose vehicle was completely stopped was free from culpable conduct.

In opposition, defendants' counsel, Jennifer L. Cook, Esq., submits her own affirmation, as well as copies of the transcripts of the examinations before trial of the plaintiff and defendant-driver.

Modobbir Miah testified on December 4, 2013. He stated that he was involved in a motor vehicle accident on April 2, 2011 at approximately 5:00 a.m. At that time he was operating a yellow cab, on the West Side Highway intending to turn on 54th Street and proceed to the East Side. He stated that as he was approaching 54th Street he observed that the traffic light at the intersection was green in his direction. When he first saw the plaintiff's Jeep it was a block away in front of him and it was moving. Both vehicles were traveling in the left lane. He stated that the plaintiff's vehicle suddenly stopped moving right before the intersection. At that time the defendant's vehicle was traveling at 15 - 20 miles per hour and the plaintiff's vehicle was 15 to 20 feet away when it stopped. Defendant did not observe the plaintiff's rear brake lights in operation. Defendant applied his brakes hard but he could not stop in time and struck the plaintiff's vehicle. When he exited his vehicle the plaintiff asked why defendant hit his car and the defendant responded, "because I thought you were going to make a left turn and you moving suddenly and stop this way" (sic).

Plaintiff testified on December 4, 2013. He stated that on the date of the accident he was driving a vehicle owned by his employer, Broadview Networks. He was traveling southbound on 12th Avenue at a rate of 30 miles per hour. As he approached the intersection with 54th Street he observed that the light was green in his direction. When he was a block away the light turned yellow. As he approached the intersection the light turned red. He stated that he brought his vehicle to a complete stop before the traffic signal turned red as it had turned yellow. He stated that his vehicle was stopped for at least ten seconds before it was struck in the rear by the defendant's vehicle. He stated that as a result of the impact his vehicle was pushed about a half a block. Immediately, after the accident the plaintiff left for a pre-scheduled trip to Puerto Rico. [*4]

In opposition to the motion, defendants' counsel, Jennifer L. Cook, Esq., states that the plaintiff's motion must be denied, as there are conflicting versions of how the accident took place, and, in addition, although the defendant struck the plaintiff's vehicle in the rear, the defendant has proffered a non-negligent explanation for the rear-end collision. Counsel contends that the defendant testified at his examination before trial that the plaintiff's vehicle was moving in front of his and that there was a green light in front of the plaintiff's vehicle at the intersection of 54th Street. The defendant testified that he believed that the plaintiff's vehicle was going to proceed through the intersection with the green light in his favor when the plaintiff's vehicle suddenly stopped at the intersection without reason. The plaintiff, on the other hand, testified that the traffic signal was yellow and then red at intersection when he gradually stopped his vehicle at the traffic signal. Thus, defendant contends that the testimony of the parties raises a question of fact as to the color of the light at the time the plaintiff stopped his vehicle in moving traffic. In addition counsel contends that the police report is not in admissible form for purposes of the motion as it is not certified (citing Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392 [1st Dept. 2003]).

In reply, plaintiff's counsel asserts that the defendant has submitted insufficient admissible evidence to demonstrate that there is a question of fact with regard to the facts of the matter. Counsel claims that the transcripts of the deposition testimony of the parties are inadmissable as they are unexecuted and unsworn and were not forwarded to the witnesses for signature in accordance with CPLR 3116(a) (citing Marks v Robb, 90 AD3d 863 [2d Dept. 2011] Moffett v Gerardi, 75 AD3d 496 [2d Dept. 2010]).Further, counsel suggests that the testimony demonstrates that the cause of the accident was the fact the defendant was following too closely in violation of vehicle and Traffic law§ 1129(a) and that defendant's explanation that the plaintiff's vehicle came to an abrupt stop without warning is not sufficient to rebut the presumption of negligence on the part of the defendant. In addition, plaintiff claims that there is no question of fact regarding the color of the light as the plaintiff stated in his deposition that the light was red when at the intersection when he stopped.

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 [*5]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] also see Raimondo v Plunkitt, 102 AD3d 851 [2d Dept. 2013] 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 AD2 330 [2d Dept. 2002] Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004]. A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Clarke v Phillips, 112 AD3d 872 [2d Dept. 2013] Gutierrez v Trillium USA, LLC, 111 AD3d 669 [2d Dept. 2013]).

Here, plaintiff testified that he slowed down as he approached the intersection with 54th Street because the traffic signal was yellow and then he was stopped at a red traffic signal for 10 seconds when his vehicle was suddenly struck from behind by defendant's vehicle. Thus, the plaintiff satisfied his 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 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 agrees with the defendant that as the police report submitted is uncertified and unsworn, it is not in admissible form and will not be considered for purposes of the instant motion for summary judgment (see CPLR 4518[c] Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012] Kang v Violente, 60 AD3d 991 [2d Dept. 2009] Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991 [2d Dept. 2006]).

However, the contention of defendant raised in opposition to the motion that the deposition transcripts are not in evidentiary form is without merit. Although the depositions are unsigned, the [*6]transcripts are certified by the court reporter and the plaintiff did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the motion for summary judgment (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012] Zalot v Zieba, 81 AD3d 935 [2d Dept. 2011]). The deposition transcript of the defendant is also admissible because the transcript was submitted by the party deponent himself and therefore was adopted as accurate by the defendant (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012] Ashif v Won Ok Lee, 57 AD3d 700 [2d Dept. 2008]).

In opposition, the defendant submitted his deposition testimony wherein he stated that as he was approaching the intersection the traffic signal was green, the plaintiff's vehicle was moving in front of him, and the plaintiff's vehicle appeared to be going through the intersection but abruptly stopped for no apparent reason notwithstanding that the traffic signal was still green. In view of defendant's testimony that the plaintiff's vehicle was proceeding with a green traffic signal but then suddenly stopped, there is a triable issue of fact as to what the color of the traffic signal was when the plaintiff stopped and whether the plaintiff negligently caused or contributed to the accident (see Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013] Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012] Vargas v Luxury Family Corp., 77 AD3d 820 [2d Dept. 2010] Delayhaye v Caledonia Limo & Car Serv., Inc., 49 AD3d 588 [2d Dept. 2008] Chepel v. Meyers, 306 AD.2d 235 [2d Dept. 2003]).

When the evidence herein is viewed in the light most favorable to the non-moving party, it is clear that the defendant raised triable issues of fact as to whether plaintiff negligently operated his vehicle and whether that negligence was a proximate cause of the accident (see Vargas v Luxury Family Corp.,77 AD3d 820 [2d Dept. 2010] Foti v Fleetwood Ride, Inc., 57 AD3d 724 [2d Dept. 2008] Delayhaye v Caledonia Limo & Car Serv., Inc., 49 AD3d 588 [2d Dept. 2008]).

Accordingly, the motion by the plaintiff for an order granting partial summary judgment on the issue of liability is denied.

Dated: March 11, 2014

Long Island City, N.Y [*7]

_______________________ROBERT J. MCDONALDJ.S.C.