I. CPLR § 2219 [a] Statement

The following e-filed documents listed on NYSCEF (Motion No. 003) numbered 46-58, 63-66 were read on this motion. The Court has considered the following papers on the motion by Defendants BEL LINDA INC. and AKRAM GILLANI ("Movants") for summary judgment pursuant to CPLR § 3212, seeking dismissal of all claims and cross-claims asserted against them:

• Notice of Motion dated July 8, 2025, with Affirmation in Support of Peter Wicklum, Esq., Exhibits A—G, and Statement of Material Facts;

• Affirmation in Opposition of Celeste Cohen-Wolf, Esq. dated August 27, 2025, with Plaintiff's deposition transcript annexed as Exhibit A and Counter-Statement of Material Facts;

• Reply Affirmation of Peter Wicklum, Esq. dated September 2, 2025.

II. Facts

This action arises from a motor vehicle collision occurring on May 29, 2021, at or near the intersection of Victory Boulevard and Bay Street in Richmond County. Plaintiff, Claudette Fahie, was a passenger in a vehicle operated by Defendant Akram Gillani and owned by Defendant Bel Linda Inc.

According to the certified police report annexed by Movants, Defendant Sergiy Kueol, while making a left-hand turn onto Victory Boulevard, struck Gillani's vehicle from the rear. Gillani testified at deposition that he was traveling on Bay Street when his vehicle was suddenly impacted from behind by a black SUV operated by Kueol, with the force of impact to his rear bumper. He denied engaging in any conduct contributing to the collision, stating he only became aware of the accident upon impact.

It is undisputed that Kueol failed to appear for deposition despite a court order directing his appearance by May 20, 2025, marked "FINAL." Discovery was certified complete on July 2, 2025, and Plaintiff thereafter filed a note of issue.

In opposition, Defendant Kueol, through counsel, disputes liability and contends that the police report is inadmissible hearsay, as the officer did not witness the collision. Counsel further asserts that the accident was not a traditional "rear-end" collision, but rather involved side impacts as noted on the diagram appended to the police report. Plaintiff herself testified that she observed Kueol's vehicle stopped in the right lane of Bay Street while Gillani's vehicle was stopped in the left lane, and that the resulting impact involved the sides of the two vehicles rather than their bumpers.

Additionally, Gillani admitted at deposition that when executing his left turn from Bay Street onto Victory Boulevard, he turned into the middle lane, despite the adjacent left lane being open. Opposing counsel argues that this maneuver violated Vehicle and Traffic Law §§ 1160 and 1163, requiring turns to be made into the proper lane and only when safe. Plaintiff corroborated that Gillani was stopped for a pedestrian prior to turning and that his turn placed his vehicle in the middle lane, where the collision then occurred.

The movants, in reply, reiterate that this was a rear-end collision attributable solely to Kueol's negligence, invoking the presumption of negligence imposed by VTL § 1129(a). They emphasize Kueol's non-appearance at deposition and argue that no admissible evidence has been proffered to defeat summary judgment.

III. Conclusions of Law

The governing standard under CPLR § 3212 is well settled: summary judgment is a drastic remedy and should only be granted where the movant establishes entitlement to judgment as a matter of law by eliminating all material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The movant's initial burden must be met through admissible evidence; absent such showing, the motion must be denied irrespective of the strength of the opposition.

Movants invoke the rear-end collision doctrine, contending that Gillani's stopped vehicle was struck from behind, thereby presumptively establishing negligence against the rear driver, Kueol (see Byrne v Calogero, 96 AD3d 704 [2d Dept 2012]). However, the presumption arises only where it is uncontroverted that the impact occurred from the rear. Here, material disputes exist.

Opposition papers highlight that both the police diagram and Plaintiff's deposition testimony describe side impacts, not a rear-end strike. Plaintiff expressly testified that the damage was to the sides of the vehicles, not the bumpers. Further, Gillani admitted he executed a left turn into the middle lane despite the availability of the far-left lane. Such testimony raises triable issues of whether Gillani violated VTL §§ 1160 and 1163 by failing to turn into the proper lane or to ensure reasonable safety before completing the maneuver. If so, a factfinder could reasonably conclude that Gillani's actions were a proximate cause of the collision.

The Court also takes cognizance of the dispute regarding admissibility of the police report. Because the officer did not witness the accident, the portions of the report reciting statements of non-duty-bound witnesses are hearsay, not competent proof of the manner of collision. While admissible as a business record to the extent it reflects matters observed by the officer, its narrative of causation is not admissible and cannot form the basis for summary judgment.

Movants rely heavily on Kueol's failure to appear for deposition. While such default may warrant preclusion of his testimony, it does not in itself obviate the conflicting admissible evidence already in the record, namely Gillani's own deposition admissions and Plaintiff's testimony. The absence of Kueol's testimony does not resolve the factual disputes surrounding the point of impact, the vehicles' respective movements, and whether Gillani's maneuver created the conditions for collision.

The Court must not weigh credibility or resolve factual disputes on a motion for summary judgment (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Here, questions abound: whether Gillani improperly turned into the middle lane; whether the collision was lateral rather than rear-end; whether Gillani exercised reasonable care in observing traffic; and whether Kueol's conduct alone was the proximate cause. These are quintessential issues of fact for a jury.

IV. Conclusion and Decretal Paragraphs

The Court finds that Defendants BEL LINDA INC. and AKRAM GILLANI have failed to establish entitlement to judgment as a matter of law. The conflicting evidence, including Plaintiff's testimony and Gillani's own admissions, creates material and triable issues of fact regarding the manner of the accident, the points of impact, and potential violations of the Vehicle and Traffic Law by Gillani.

Accordingly, it is hereby,

ORDERED, that the motion by Defendants BEL LINDA INC. and AKRAM GILLANI [*2]for summary judgment pursuant to CPLR § 3212 is DENIED in its entirety.