Upon the following papers read on this application by plaintiff for an order granting partial summary judgment on the issue of liability; Notice of Motion dated November 9, 2017 and supporting papers (NYSCEF Doc No.23-38); Answering Affidavits and supporting papers on behalf of defendants North Fork Tree Co., LLC and Alberto Ramos (NYSCEF Doc #42-48); Answering Affidavits and supporting papers on behalf of defendant Coastal Contracting Corp. (NYSCEF Doc #39); Replying Affidavits and supporting papers (NYSCEF Doc #50); it is

ORDERED that this motion by plaintiffs Arthur Haas and Cindy Haas for an order awarding partial summary judgment on the issue of liability is granted; and it is further

ORDERED that defendants North Fork Tree Co., LLC and Alberto Ramos First Affirmative defense is dismissed.

Plaintiffs Arthur Haas and Cindy Haas ("plaintiffs") commenced this action to recover damages for alleged personal injuries as the result of a motor vehicle accident that occurred on November 24, 2014, on Montauk Highway in Bridgehampton, Suffolk County, New York ("the location"). The accident purportedly occurred when the first vehicle, operated by defendant Alberto Ramos ("Ramos") and owned by defendant North Fork Tree Co LLC ("North Fork"), was traveling westbound on Montauk Highway, and crossed into the eastbound lane of traffic striking the vehicle owned and operated by plaintiff Arthur Haas, and continued out of control striking the vehicle owned and operated by non-party Jose Feliciano.

Plaintiffs commenced the present action (Action # 1) against defendants, North Fork and Ramos by filing a summons and complaint on January 5, 2015. On or about June 13, 2016 plaintiffs commenced a second action (Action # 2) against John Kourbage ("Kourbage") and Tri State Horticultural Services, Inc. (Index No. 60891/2016) and on or about April 6, 2017 plaintiffs commenced a third action (Action # 3) against Coastal Contracting Corp ("Coastal") (Index No. 606396/2017).

Plaintiffs filed the within motion for an order awarding partial summary judgment on the issue of liability (Mot. Seq. #002) in Action # 1 which motion was initially returnable December 19, 2017. While this motion was pending, the court granted defendant Coastal's motion filed in Action #3 for consolidation of all three actions by order dated April 5, 2018 (Luft, A.S.C.J.), and the caption was amended as reflected above. The consolidated action was administratively transferred to the general inventory of Part 27 in January 2019, and this motion was marked fully submitted March 14, 2019. Defendants North Fork and Ramos oppose the motion, as does defendant Coastal. Pursuant to stipulation dated June 21, 2018 the action was discontinued as to defendant Tri State Horticultural Services Inc.

In support of the motion plaintiffs submit the pleadings, their attorney's affirmation, transcripts of the Examination Before Trial ("EBT") of plaintiff Arthur Haas ("plaintiff") and Ramos, as well as an EBT of Kourbage, president of North Fork, photographs of plaintiff's vehicle, and affidavits of plaintiff, the eyewitness Jose Feliciano, Daquan Garrison a co-worker and passenger in the Ramos vehicle, and the affidavits of Peter Jetter and Joe Stella, employees of the United States Postal Service and co-workers of plaintiff, who purportedly came upon the scene shortly after the accident. In opposition defendants North Fork and Ramos submit a certified copy of the MV-104A, an affidavit from Ramos, and various discovery demands and responses, including therein a photograph depicting plaintiff's vehicle on fire in the eastbound lane of Montauk Highway. Defendant Coastal submits in opposition an affirmation of counsel [*2]and copies of the complaint and answers in Actions #1 and # 3.

To be granted summary judgment, the proponent's motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to eliminate any material issues of fact from the case (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Winegrad v. New York University Medical Center, 64 NY2d 851[1985]; Gilbert Frank Corp. v. Federal Insurance, 70 NY2d 966[1988]; Torres v. Industrial Container, 305 AD2d 136 [1st Dept 2003]). The movant has the initial burden of proving entitlement to summary judgment, failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Jacobsen v. New York City Health & Hospital Corp, 22 NY3d 824 [2014]; William J. Jenack Estate Appraiser and Auctioneers v. Rabizadeh, 22 NY3d 470 [2013]). Only after such proof has been offered does the burden then shift to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form to establish a factual issue sufficient to require a trial (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557 [1980]). The facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557 [2d Dept 2001]; O'Neill v Fishkill, 134 AD2d 487[2d Dept 1987]).

Plaintiffs have made a prima facie showing of entitlement to summary judgment by submitting evidence including the eyewitness statements, EBT testimony, photographs and the police report indicating that the accident occurred in the eastbound lane of Montauk Highway when the vehicle Ramos was operating was heading west, crossed into the eastbound lane of traffic striking plaintiffs' vehicle head on. Accordingly, the burden shifts to the opposing parties to submit admissible evidence which raises a triable issue of fact regarding plaintiff's involvement in the accident. Defendants have failed to meet this burden.

In their opposition defendants North Fork and Ramos contend that the accident occurred in the middle turning lane on Montauk Highway while Ramos was allegedly waiting to make a left turn and he was hit by the vehicle driven by plaintiff. Defendants point to alleged inconsistencies between plaintiff's statement to the police given at the scene of the accident, after plaintiff was involved in a collision and pulled from his burning vehicle, when he told police he "didn't know what happened," compared with the testimony at his EBT taken eight months after the accident, as well as the statements in his affidavit. Notably, other than the aforementioned discrepancies between plaintiff's statement given to police on the date of the accident compared with the statements in his EBT and affidavit, defendants North Fork and Ramos raise no objection to the substance of the eyewitness accounts of Feliciano, Garrison, Jetter and Stella. Feliciano and Garrison both attest to witnessing the accident which they describe as the Ramos vehicle being in a head on collision with plaintiffs's vehicle in the eastbound lane of Montauk Highway after crossing over from the westbound direction. Further, Garrison, a passenger in the Ramos vehicle, avers that Ramos appeared asleep with his eyes closed at the time his vehicle veered into the east bound lane striking plaintiff's vehicle. Additionally, Feliciano avers that Ramos fled the scene of the accident and had to be restrained by him and another to remain in the vicinity. Jetter and Stella attest to driving in the eastbound lane of Montauk Highway and coming upon the scene of a vehicle in the eastbound lane on fire, which each affiant later learned to be the vehicle drive by plaintiff; additionally a photograph showing plaintiff's vehicle on fire in the eastbound lane was submitted. Here the evidence submitted established that Ramos [*3]violated the Vehicle and Traffic Law by crossing from the westbound lane of travel to the eastbound lane of travel of Montauk Highway striking plaintiff's vehicle. A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law establishing plaintiffs prima facie entitlement to judgment as a matter of law on the issue of liability (see Kerolle v Nicholson, 172 AD3d 1187 [2d Dept 2019]).

North Fork and Ramos contend that the affidavits submitted by plaintiffs are not in admissible form and should not be considered. This argument is without merit. Each of the five affidavits submitted by plaintiffs is labeled "Affidavit" and begins either "[the affiant], being duly sworn deposes and says" or "[the affiant], being duly sworn and over the age of twenty one years, states the following to be true under penalties of perjury." Each affidavit is signed by the affiant and duly notarized, and all contain the customary language in the notary jurat "before me personally came [the affiant]," except the Feliciano affidavit. The court finds that under these circumstances all of the affidavits are acceptable (see NYCTL 2005-A Trust v Rosenberger Boat Livery, Inc., 96 AD3d 425 [1st Dept 2012]). Additionally defendants North Fork and Ramos' argument that plaintiff's affidavit should not be considered because it was signed in Arizona and failed to include the out of state certificate carries no weight as such an error is not a fatal defect (see US Bank, N.A. v Dellarmo, 94 AD3d 746 [2nd Dept 2012]). Finally defendants North Fork and Ramos' argument that the affidavits of Jetter and Stella should not be considered because plaintiffs "secreted" those witnesses is also without merit as plaintiffs, in reply, submitted proof that the identity of these witnesses was exchanged with defendants by letter dated October 12, 2016.

Contrary to defendants North Fork and Ramos' contention, plaintiffs were not required to demonstrate that they were free from comparative fault to obtain partial summary judgment on the issue of liability (see Rodriguez v. City of New York, 31 NY3d 312 [2018]; Garcia v McCrea, 170 AD3d 517 [2d Dept 2019]; Davis v Commack Hotel, LLC, _ AD3d _, 2019 NY Slip Op 05385 [2d Dept 2019]). Moreover there are rare instances when credibility should be determined by a court on summary judgment(see Loughlin v City of New York, 186 AD2d 176 [2d Dept 1992]; Sullivean v Pilevsky, 281 AD2d 410 [2d Dept 2011]; Dorazio v Delebene, 37 AD3d 645 [2d Dept 2007]). Here the court has determined that defendant Ramos's version of the accident is not credible as a matter of law when faced with the other testimony and exhibits (see Dorazio v Delebene, supra; Carthen v Sherman, 169 AD3d 416 [1st Dept 2019]; Kerolle v Nicholson, supra).

Accordingly the motion of plaintiffs for partial summary judgment on the issue of liability (Mot. Seq. #002) is granted and defendants North Fork and Ramos's First Affirmative defense is dismissed.

As for defendant Coastal, its opposition failed to raise a triable issue of fact as counsel's affirmation, standing alone, was insufficient to do so (see CPLR 3212[b]; Roche v Hearst Corp., 53 NY2d 767 [1981]; Lazarre v Gragston, 164 AD3d 574 [2d Dept 2018]; Bentick v Gatachalian, 147 AD3d 890 [2d Dept 2017]). But, as the action against Coastal was not joined at the time of this motion, and plaintiffs' motion does not seek summary judgment against Coastal, nor does it appear appear that plaintiff's filed a motion seeking summary judgment against Coastal in Action # 3, the court can make no direct decision regarding Coastal, although the effect of the decision herein will bear directly upon Coastal's liability if it is found that [*4]Ramos was operating the North Fork vehicle in his capacity as an employee of Coastal.

This constitutes the Order and decision of the Court.