Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:

Upon oral argument held and placed on the record on September 7, 2022 and review of the foregoing papers, this motion is decided as follows.

Defendant the Public Administrator as administrator of the Estate of Norman A. Kanowitz moved this court for summary judgment on the issue of liability. It is hereby

ORDERED that the within motion seeking summary judgment on the issue of liability seeking dismissal of the complaint and all crossclaims asserted against the defendant THE PUBLIC ADMINISTRATOR as the administrator of the Estate of Norman Kanowitz is granted.

Plaintiffs, passengers in the Nici vehicle, allegedly sustained injuries when the vehicle owned and operated by the Nici's struck the rear of the vehicle owned and operated by the estate of Mr. Kanowitz.

Judge Knipel precluded defendants Nici from testifying at trial or submitting affidavit in dispositive motions because the Nicis did not appear for depositions. However, the Court notes that even before Judge Knipel issued this order, the Nici defendants did not submit any affidavit in opposition to the subject motion to demonstrate a non-negligent explanation for striking the rear of the Kanowitz vehicle. A rear-end collision creates an inference of liability and imposes a duty of reasonable explanation on the operator of the offending vehicle to rebut the inference. See Ross v JFC Intl., 125 NYS3d 282 (2d Dept. 2020); Ramos v Baig, 43 NYS3d 110 (2d Dept. 2016); Tsang v New York City Transit Authority 3 NYS 3d 370 (2d Dept. 2015).

The Nici defendant's argument that Judge Solomon's prior order found both defendants liable, thus precluding the instant motion based on res judicata is unavailing. Plaintiff' previously moved for summary judgment on liability against the defendants which was in effect a motion for summary judgment on the issue of whether the plaintiffs were at fault in the happening of the subject incident. The motion was granted by Judge Solomon only to the extent of finding no culpable conduct on the part of the regarding the happening of the incident, while finding that liability of defendants is still to be determined. See Medina v Rodriguez, et al, 939 NYS2d 850 (2d Dept. 2018).

Movant, in support of the instant motion, partially relies on Nici's statement in a certified police report made to the police officer that their vehicle rear-ended the Kanowitz vehicle. This statement is in admissible form as the police report is certified. Moreover, the statement constitutes party admission as it is against the declarant's interests. Moreover, the admissibility of this statement is not precluded by Judge Knipel's order.

In opposition, counsel for plaintiff argues that the defendant Nici in addition to informing the police officer that he had rear-ended the Kanowitz vehicle further represented to the officer in substance the Mr. Kanowitz had told Mr. Nici that Mr. Kanowitz had stopped for a stop sign that was meant for a separate street. Mr. Nici's above statement, however, is inadmissible. His statement as to what Mr. Kanowitz told Mr. Nici is not a declaration against Mr. Nici's interest, constitutes double hearsay and further inadmissible because Mr. Nici is under any obligation to report what Mr. Kanowitz told him to the police officer (where a driver was under no business duty to report an accident, her statement is inadmissible. Here, Mr. Nici was under no obligation to report the accident on behalf of Mr. Kanowitz, so any statement made by Mr. Kanowitz to Mr. Nici is inadmissible).

Furthermore, even if the statement were not inadmissible, this court finds that it's inherently ambiguous to raise an issue of fact to rebut the presumption of negligence in this case. Where a party affirmatively proffers an inadmissible statement from a police report in opposition to a motion for summary judgment, the Court might consider it only if there is additional evidence in admissible form submitted by the opposing party. See Stock v Otis El Co., 52 AD3d 816, 861 NYS 2d 722 (2d Dept, 2008). Opposing counsel however not submitted any admissible evidence.

In addition to the police report, Movant has annexed the deposition testimony of plaintiff Lockliaeras through his moving papers. On page 30, lines 12-20 of the transcript she was asked:

Q. Can you tell me what you saw?

A. From where I was sitting, I'd seen the hood bunched all the way up. You cannot see forward.

While movant passed away prior to deposition, the above testimony further supports Mr. Nici's admission that he rear-ended the Kanowitz vehicle. Based on the foregoing, the Kanowitz motion for summary judgment is granted. The action is hereby dismissed only as against the defendant THE PUBLIC ADMINISTRATOR as the administrator of the Estate of Norman Kanowitz.

This constitutes the Order of the Court.