[*1]
Terzakos v J Realty F Rockaway, Ltd
2015 NY Slip Op 50655(U) [47 Misc 3d 1217(A)]
Decided on May 1, 2015
Supreme Court, Queens County
McDonald, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 1, 2015
Supreme Court, Queens County


Lenora Terzakos, Plaintiff,

against

J Realty F Rockaway, Ltd, and JESSICA ARIEL PERICH, Defendant.




700883/2015
Robert J. McDonald, J.

In this negligence action, the plaintiff, Lenora Terzakos, seeks to recover damages for personal injuries she allegedly sustained as a result of a motor vehicle accident that occurred on April 10, 2014, between her vehicle and the vehicle owned by defendant J Realty F Rockaway, Ltd, and operated by defendant, [*2]Jessica Ariel Perich.

At the time of the accident, plaintiff was operating her vehicle on 161st Avenue at the intersection with Cross Bay Boulevard, Queens County, New York. The plaintiff's vehicle was allegedly struck in the rear by the vehicle being operated by defendant while plaintiff was stopped waiting at a red traffic signal.

The plaintiff commenced this action by filing a summons and verified complaint on February 2, 2015. Issue was joined by service of defendant's verified answer dated March 15, 2015. Plaintiff now moves, prior to examinations before trial, for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting the matter down for a trial on serious injury and damages only.

In support of the motion, the plaintiff submits an affirmation from counsel, Thomas J. Cicillini, Esq., a copy of the pleadings; a copy of the police accident report; and an affidavit of merit from the plaintiff, Lenora Terzakos, dated February 25, 2015.

In her affidavit the plaintiff states that on April 10, 2014 at approximately 3:00 p.m. she was operating her vehicle in an eastbound direction on 161st Avenue, at it intersection with Cross Bay Boulevard, Queens County, New York. She states that she brought her vehicle to a slow gradual and complete stop at the red light controlling traffic in the eastbound direction of 161st Avenue. She states that her vehicle was stopped for approximately ten seconds, with her foot on the brake, when it was struck in the rear by the vehicle operated by defendant, Jessica Ariel Perich. She states that at the time of the accident her brake lights were fully operational and illuminated.

The description of the accident contained in the police accident report prepared by the responding officer at the scene states as follows:

"Operator of Veh No.1 (defendant), stated that she thought that the signal changed and she proceeded at which time she struck oper Veh #2(plaintiff). Oper veh #2 (plaintiff) stated she was stopped at the traffic signal on red when she was struck from behind."

Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant in that defendant's vehicle was traveling too closely in violation of VTL § 1129 and the defendant driver failed to safely stop her vehicle prior to [*3]rear-ending the plaintiff's vehicle. In addition, counsel asserts that the defendant admitted to the police officer at the scene that she proceeded because she believed that the traffic signal had changed. 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 comparative negligence.

In opposition to the motion, counsel for the defendant, Jennifer M. Belk, Esq. states that the instant motion should be denied because although defendant's vehicle rear-ended the plaintiff's vehicle that does not preclude a finding that comparative negligence by the plaintiff contributed to the accident. Counsel also asserts that the police report is not admissible for purposes of the motion for summary judgment because the statements of the police officer who prepared the report are hearsay as the officer did not witness the occurrence herself. Additionally, counsel asserts that the motion is premature as discovery has not been complete as plaintiff has not yet served a bill of particulars and neither party has been deposed.

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 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 Delgado v Bang, 120 AD3d 608[2d Dept. 2014]; Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013]; Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]).

Here, plaintiff testified that her vehicle was lawfully stopped for ten seconds waiting at a red traffic signal when it was suddenly struck from behind by the defendant's vehicle. Thus, [*4]plaintiff satisfied her prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability (see Rodriguez v Farrell, 115 AD3d 929 [2d Dept. 2014]; Williams v Spencer-Hall, 113 AD3d 759 [2d Dept. 2014]; Robayo v Aghaabdul, 109 AD3d 892 [2d Dept. 2013]; Sayyed v Murray, 109 AD3d 464 [2d Dept. 2013]; Prosen v Mabella, 107 AD3d 870 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to the defendant to raise a triable issue of fact as to whether the operator of plaintiff's 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]). Here, there is no dispute that plaintiff's vehicle was rear-ended by defendant's vehicle and no dispute that defendant admitted to the police officer at the scene that she proceeded ahead because she thought the traffic light had changed (see Brown v Pinkett, 110 AD3d 1024 [2d Dept. 2013]; Griffin v Pennoyer, 49 AD3d 341 [1st Dept. 2008]).

The police officer who prepared the accident report was acting within the scope of her duty in recording the defendant driver's statement and the statement is admissible as an admission of a party (see Jackson v Trust, 103 AD3d 851 [2d Dept. 2013]; Scott v Kass, 48 AD3d 785 [2d Dept. 2008]; Kemenyash v McGoey, 306 AD2d 516 [2d Dept. 2003]).

This court finds, therefore, that defendant, who has not submitted an affidavit in opposition to the motion, has failed to provide evidence of 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]). 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]).

The defendants' contention that the plaintiff's motion for summary judgment is premature is without merit. The defendants' 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 [*5]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]).

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 plaintiff's motion is granted, and the plaintiff, Lenora Terzakos, shall have partial summary judgment on the issue of liability against the Defendant, J Realty F Rockaway, Ltd, and Jessica Ariel Perich, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that following completion of discovery on the issue of serious injury and damages, and the filing of a note of issue, this action shall be placed on the trial calendar of the Court for a trial on serious injury and damages only.

The issue of whether the defendant driver may be called as a witness at the trial on damages to offer testimony regarding the force of the impact and damage to the vehicle is referred to the trial judge.

Dated: May 1, 2015

Long Island City, NY

_________________

ROBERT J. MCDONALD
J.S.C.