Supreme Court, Richmond County, December 17, 2021

Cherny & Podolsky, PLLC, Brooklyn (Kardon A. Stolzman of counsel), for plaintiff.

The Kendric Law Group P.C., Cold Spring Harbor (Christopher Kendric of counsel), for Domino's Pizza LLC and others, defendants.

Johnson Liebman, LLP, New York City (Robert E. Johnson of counsel), for Mohamed S. Suleiman, defendant.

The decision and order of the court is as follows:

The present personal injury action was commenced with the filing of a summons and complaint on or about March 12, 2020. The action arises out of a motor vehicle "accident" which occurred on November 6, 2019, in the westbound lanes of the Staten Island Expressway. At the time of the incident plaintiff Ezzi was a passenger in a rented U-Haul pickup truck which was operated by defendant Suleiman. Defendant Alale was driving a tractor-trailer during the course and scope of his employment with defendant Domino's Pizza LLC (Domino's). [*2]Defendant Domino's leased the tractor-trailer involved in the incident from defendant Ryder Truck Rental, Inc. (Ryder). Plaintiff alleges that he sustained serious injuries as a result of the November 6th incident, and that the defendants are jointly and severally liable for his injuries.

By so ordered stipulation dated June 18, 2021, the present action was consolidated with a related action under Richmond County index No. 152455/2020. Defendant Suleiman is the plaintiff in that action, while the defendants remain the same. The consolidation was limited to purposes of joint discovery and a joint trial. By a second so ordered stipulation dated June 18, 2021, the parties agreed to discontinue both consolidated{**74 Misc 3d at 219} actions as they pertained to defendants Ryder Truck Rental, Inc. and U-Haul pursuant to the Graves Amendment. (See 49 USC § 30106.)

On or about January 5, 2021, plaintiff filed a motion (seq No. 001) which seeks to amend his complaint to add "Domino's Pizza Inc." as a defendant in this action. Plaintiff argues that as part of his investigation into the matter, he has determined that "Domino's Pizza Inc." is an additional insured party under the insurance policy held by defendant Domino's Pizza LLC. As such, he wishes to add them to this action. In opposition, defendant Domino's Pizza LLC argues that any claim asserted against Domino's Pizza Inc. would be frivolous, as they are a special purpose corporation with no employees. Thus, as Mr. Alale was employed by defendant Domino's Pizza LLC, any vicarious liability would flow to that entity, not to Domino's Pizza Inc.

On or about January 22, 2021, defendants Alale and Domino's (the moving defendants) filed a motion (seq No. 002) which seeks an order granting them summary judgment dismissing plaintiff's complaint on the ground that there are no triable issues of fact regarding how this incident occurred. The moving defendants argue that contrary to the position taken by plaintiff that this was a typical "hit in the rear" accident, this incident was actually "staged" and was intentionally caused by defendant Suleiman, with or without the knowledge of plaintiff. The moving defendants further request that they be granted the right to add an affirmative defense of the "emergency doctrine" to their verified answer if summary judgment is not granted.

The moving defendants allege in a sworn affidavit by defendant Alale that the vehicle operated by defendant Suleiman, in which plaintiff was a passenger, suddenly swerved into their established lane of traffic and then aggressively applied its brakes with the intention of causing a collision. The moving defendants further allege that defendant Suleiman swerved into their lane, in the middle of a four-lane expressway, without signaling. In opposition, plaintiff and defendant Suleiman both allege that traffic conditions necessitated the abrupt lane change, and the sudden stop. Arguably this assertion by plaintiff contradicts his negligence causes of action against defendant Suleiman, as plaintiff's counsel asserts that "Defendant {**74 Misc 3d at 220}Suleiman . . . has provided a non-negligent explanation for how the crash occurred" (plaintiff aff in opp ¶ 18). However, defendant Suleiman has not filed a motion for summary judgment.

It is undisputed that defendant Suleiman was arrested at the scene and charged with a violation of Vehicle and Traffic Law § 511 (3) for the "aggravated unlicensed operation of a motor vehicle in the first degree." Notably, this charge does not directly relate to the manner in which defendant Suleiman operated his vehicle and rather relates to the fact that he did not possess a valid driver's license at the time and place of occurrence. In support of their motion the moving defendants have offered a copy of the MV-104 police accident report prepared by the arresting officer; however the report contains inadmissible hearsay and therefore cannot be considered. (See De Diaz v Klausner, 198 AD3d 475 [1st Dept 2021].)

In addition to sworn affidavits in support of the motion for summary judgment, the moving defendants have submitted a "dash-cam" video of the incident in question. This split-screen video depicts a view of the inside of the tractor-trailer's cab, and a view in front of the vehicle. The video is clear, has sound, and displays the speed of the moving defendants' vehicle. To date, no party has raised an objection to the submission of the video or challenged its accuracy. Rather, plaintiff and defendant Suleiman argue that the motion is premature, and that the video in question is "inconclusive" and insufficient to support the granting of summary judgment.

The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. (See OTTY Cab Corp. v Nazir, 57 Misc 3d 158[A], 2017 NY Slip Op 51666[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017].) A movant's burden can be satisfied by the submission of sworn affidavits in proper evidentiary form. (See Charlie Fox, Inc. v Diallo, 53 Misc 3d 144[A], 2016 NY Slip Op 51566[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016].) That burden may also be satisfied by the submission of dashboard camera video evidence. (See Alston v Irizarry, 195 AD3d 578 [2d Dept 2021].) Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-{**74 Misc 3d at 221}moving party or parties to raise a material issue of fact. (See Ubillus-Tambini v Ischakov, 51 Misc 3d 136[A], 2016 NY Slip Op 50570[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016].) Generally, unsworn motor vehicle accident reports do not constitute evidence in admissible form for the purposes of supporting, or defeating, a summary judgment motion. (See Hegy v Coller, 262 AD2d 606 [2d Dept 1999].)

Here, the moving defendants have met their initial burden of establishing their entitlement to summary judgment as a matter of law. The affidavit of defendant Charles Alale establishes that the vehicle he was operating was traveling at a safe rate of speed and at a safe distance from the vehicle ahead of him. Defendant Alale states that contact between the vehicles at issue in this case occurred when defendant Suleiman's vehicle suddenly and unexpectedly swerved into his lane of travel and immediately applied its brakes. Defendant Alale indicates that while he attempted to apply the brakes of his vehicle, there was no way for him to stop a tractor-trailer given the unexpected proximity of the Suleiman vehicle.

Defendant Alale's testimony is supported by dashboard camera video evidence of the incident, which clearly shows that the moving defendants were traveling at 17 to 18 miles per [*4]hour, in moderate traffic conditions just before the incident. The video further shows that the moving defendants were established in their lane of travel and were maintaining a safe distance of at least 31/2 to 4 car lengths away from the vehicle traveling ahead of them in compliance with Vehicle and Traffic Law § 1129 (a). At the five second marker of the video defendant Suleiman's U-Haul truck comes into frame and abruptly changes lanes into the space directly in front of the Alale vehicle, at a distance of two or three feet. When the Suleiman vehicle enters Alale's lane, there are at least 31/2 car lengths between it and the vehicle ahead of it, but despite this distance, the Suleiman vehicle abruptly slams on the brakes, causing the Alale vehicle to strike it in the rear. It appears from the video that this accident was likely "intentionally staged" as argued by the moving defendants. It is against the public policy of this state for a plaintiff to recover in a case where he engaged in unlawful conduct. (See Oriental v U-Haul Co. of Ariz., 130 AD3d 702 [2d Dept 2015]; Manning v Brown, 91 NY2d 116 [1997].){**74 Misc 3d at 222}

The video evidence submitted in support of the present motion establishes that there was no objectively identifiable reason for the Suleiman vehicle to have abruptly changed lanes or to have stopped suddenly. Moreover, it is clear that the lane change was "unsafe" in violation of Vehicle and Traffic Law § 1128 (a). (See Castro v Hatim, 174 AD3d 464 [1st Dept 2019].) Considering both the affidavit of defendant Alale together with the dash-cam video, the moving defendants have met their burden of establishing that the unsafe lane change was the sole proximate cause of this incident. (See Raza v Gunik, 129 AD3d 700 [2d Dept 2015]; Reyes-Diaz v Quest Diagnostic Inc., 123 AD3d 790 [2d Dept 2014].) Defendant Suleiman had a duty not to enter a lane of moving traffic until it was safe to do so, and his failure to heed this duty constitutes negligence per se. (See Sanchez v Oxcin, 157 AD3d 561 [1st Dept 2018].)

As the moving defendants have established their entitlement to summary judgment as a matter of law, the burden shifts to the non-moving parties, in this case plaintiff Ezzi and defendant Suleiman, to raise a material question of fact. (See Paula v City of New York, 249 AD2d 100 [1st Dept 1998].) The non-moving parties have failed to meet their burden. Both plaintiff and defendant Suleiman argue that traffic conditions necessitated both the lane change, and the sudden application of brakes, but the video evidence submitted shows otherwise. There is no indication in the video that the vehicles traveling ahead of the incident were stopping, and even if they were, the vehicles were traveling at such a slow rate of speed such that defendant Suleiman could have easily stopped in his lane of travel without incident if conditions necessitated him to do so. Moreover, once he changed lanes there was absolutely no reason for him to "slam on his brakes," as there was a considerable amount of space ahead of his vehicle, but little to no space behind it. The affidavits offered by the non-moving parties are self-serving, contradicted by the video evidence, and insufficient to raise a triable issue of fact. (See Weber v Monsey New Sq. Trails Corp., 191 AD3d 929 [2d Dept 2021]; see also Tardio v Saleh, 193 AD3d 901 [2d Dept 2021].) There is no evidence in the record that the moving defendants in any way contributed to the happening of the incident or could have done anything to avoid it. (See Wu Kai Ming v Grossman, 133 AD3d 742 [2d Dept 2015].) Thus, summary judgment is warranted under the facts presented. (See Leonard v Pomarico, 137 AD3d 1085 [2d Dept 2016].){**74 Misc 3d at 223}

Generally, this court requires motions for summary judgment to be filed after the close of discovery. However, in this case, specific authority was granted for the filing of the present [*5]motion. Thus, the non-moving parties' argument that the motion is premature, standing alone, is without merit. To establish that a motion for summary judgment is premature, the non-moving parties are required to "demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant." (Everhome Mtge. Co. v Aber, 195 AD3d 682, 688 [2d Dept 2021].) "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." (Toltchelnikova v Community Recycling, LLC, 197 AD3d 677, 679 [2d Dept 2021]; see also Cajas-Romero v Ward, 106 AD3d 850 [2d Dept 2013].) Here, the non-moving parties have not established that additional discovery would lead to relevant evidence.

For the detailed reasons set forth above, motion sequence No. 002 is hereby granted in its entirety. All causes of action asserted by plaintiff are hereby dismissed with prejudice. In light of this court's decision on the motion for summary judgment the plaintiff's motion to amend his summons and complaint to add a party is hereby denied as moot. Similarly, defendants' motion to amend their answer to assert an "emergency doctrine" defense is hereby denied without prejudice as academic, although the facts presented would arguably be sufficient to satisfy the doctrine, as the moving defendants were faced with an unexpected emergency situation not of their own making. (See Penaranda v Tesoriero, 195 AD3d 633 [2d Dept 2021].)

This constitutes the decision and order of the court on all issues raised in relation to motion sequence Nos. 001 and 002. As summary judgment has been granted to the moving defendants, the matter shall only proceed against defendant Suleiman. Plaintiff's attorney in the consolidated action is hereby granted 10 days from service of this motion to consider withdrawing that action. In the event that he fails to do so, the defendants in that action are authorized to file a motion for summary judgment in accordance with this decision.