The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25, 29, 30, 31, 32, 33 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is ordered that plaintiff's motion for summary judgment is determined as follows:

Plaintiff Roselia Suescun commenced this action to recover damages for personal injuries allegedly sustained on November 29, 2022, while she was a passenger in a vehicle operated by non-party Jorge Suescun (hereinafter, plaintiff's vehicle or her vehicle). The accident occurred on Sutphin Boulevard, near the intersection with 122nd Avenue, in Queens County, when defendants' vehicle, owned by defendant VisionPro Installations Corp. and operated by [*2]defendant Jamiel Reid (Reid), struck the rear of plaintiff's vehicle while it was stopped. Plaintiff now moves for an order, pursuant to CPLR 3212, granting partial summary judgment on the issue of liability in plaintiff's favor against defendants, striking defendants' first, second, and fifth affirmative defenses for culpable conduct, failure to use a seatbelt and emergency situation, and "setting a date certain for the plaintiff's deposition on damages only."

It is well established that the proponent of a summary judgment motion must establish a prima facie case showing of entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Once this demonstration has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidence, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Where there is no genuine issue to be resolved at trial, the case should be summarily decided (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

A plaintiff moving for partial summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that defendant's negligence was the proximate cause of the alleged injuries (see Shah v MTA Bus Company, 201 AD3d 833, 834 [2d Dept 2022] [internal citations and quotation marks omitted]). It is well established that a plaintiff does not bear the double burden of establishing defendant's liability and the absence of their own comparative fault (see Rodriguez v City of New York, 31 NY3d 312 [2018]). "The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers" (Romain City of New York, 177 AD3d 590, 591 [2d Dept 2019]). However, "[i]f the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by defendants in opposition summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger" (Phillip v D7D Carting Co., Inc., 136 AD3d 18, 24 [2d Dept 2015]).

As an initial matter, plaintiff contends that she is entitled to summary judgment based upon res judicata since Jorge Suescun, the driver of plaintiff's vehicle, was granted partial summary judgment on the issue of liability in his favor, without opposition, in the separate action, Jorge Suescun v Visionpro Installations Corp. et al, bearing Index No. 709523/2023, in Supreme Court, Queens County, by Decision and Order dated January 19, 2024 (Miur, J.). In the instant action, defendants raise in opposition that plaintiff's attorney had agreed to withdraw the summary judgment motion in the separate action and contend that plaintiff's reliance on res judicata is disingenuous. Defendants aver that they made a motion to vacate the January 19, 2024 order which, upon review of the separate action's record, was granted, without opposition, on December 2, 2024. Under these circumstances, the Court takes judicial notice of the December 2, 2024 order (NY St Cts Elec Filing [NYSCEF] Doc No. 46, Index No. 709523/2023) and declines to afford res judicata effect to the vacated January 19, 2024 order. Plaintiff's counsel's submission of an undated but signed stipulation between the parties in the separate action, reflecting that defendants had conceded liability for the subject accident, is submitted for the first time on reply and as such, will be disregarded; there is no evidence that it could not have been submitted with plaintiff's initial moving papers, it was not submitted in response to allegations made for the first time in opposition, and no opportunity was afforded for [*3]the other party to respond to the reply papers (see Zeldin v Larose, 223 AD3d 858, 859 [2d Dept 2024]; Gottlieb v Wynne, 159 AD3d 799, 801 [2d Dept 2018]; Gelaj v Gelaj, 164 AD3d 878, 879 [2d Dept 2018]). The Court will now proceed to determine the motion on its merits.

In support of the motion, plaintiff submits, among other things, her affidavit, the pleadings, a photograph of the license plate of defendants' vehicle with the metadata, certified New York State Department of Motor Vehicle (DMV) license plate search results, and front dashcam footage of the accident. Plaintiff attests in her affidavit that she was the passenger of a vehicle owned and operated by Jorge Suescun "stopped at a red traffic light when suddenly defendant crashed his vehicle into [her] vehicle." Plaintiff further attests that the "front of defendants' vehicle came into contact with the rear of [her] vehicle." Plaintiff attests that after defendants' vehicle struck her vehicle, the drivers spoke, and while Jorge Suescun was taking a photograph of the license plate of defendants' vehicle, defendant Reid fled the scene of the accident. Plaintiff further attests that her seatbelt was properly fastened at the time of the accident, and the dashcam video is a fair and accurate representation of how the accident occurred. In a motor vehicle accident, a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Catanzaro v Edery, 172 AD3d 995, 996 [2d Dept 2019]). A rear-end accident with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the accident (see Cheow v Cheng Lin Jin, 121 AD3d 1058, 1059 [2d Dept 2014]; Miller v Irwin, 243 AD2d 546, 546 [2d Dept 1997]). Upon review of the evidence presented, plaintiff has established a prima facie case of negligence. The burden then shifts to defendants to rebut the inference of negligence by providing a non-negligent explanation for the accident.

In opposition, defendants submit only an attorney's affirmation and, therefore, fail to submit an affidavit from a person with personal knowledge of the facts either denying plaintiff's allegations or offering a non-negligent explanation for the rear-end accident (see Maurice v Donovan, — AD3d —, 2025 NY Slip Op. 00656 *2 [2d Dept 2025]; Sapienza v Harrison, 191 AD3d 1028 [2d Dept 2021]; Montalvo v Cedeno, 170 AD3d 1166 [2d Dept 2019]). The sole affirmation by counsel bears no probative value or evidentiary significance and is thus unavailing (see Nerayoff v Khorshad, 168 AD3d 866, 867 [2d Dept 2009]; Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Accordingly, upon the opposition presented, defendants fail to rebut the inference of negligence. If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Piltser v Donna Lee Mgt. Corp., 29 AD3d 973, 974 [2d Dept 2006]). Therefore, the branch of plaintiff's motion for partial summary judgment on the issue of liability is granted.

The Court then turns to the branch of plaintiff's motion striking defendants' first, second, and fifth affirmative defenses for culpable conduct, failure to use a seatbelt and emergency situation. Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Kwok King Ng v West, 195 AD3d 1006, 1007 [2d Dept [*4]2021]). Here, plaintiff has sufficiently established that she was an innocent passenger and bore no fault in the happening of the accident, she was wearing a seatbelt, and there is no evidence of an emergency situation for the doctrine to apply. Defendants have failed to raise a triable issue of fact as to these defenses and do not produce evidence to the contrary. Therefore, the branch of plaintiff's motion to strike defendants' first, second, and fifth affirmative defenses for culpable conduct, failure to use a seatbelt and emergency situation is granted.

Defendants' contention that granting plaintiff's motion for summary judgment is premature is without merit. Pursuant to CPLR 3212 (f), the court may deny a motion for summary judgment if "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." "It is incumbent upon the opposing party to provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party" (Suero-Sosa v Cardona, 112 AD3d 706, 708 [2d Dept 2013] [internal citations omitted]; see Sapienza v Harrison, 191 AD3d 1028, 1031 [2d Dept 2021]; Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 770 [2d Dept 2014]). Upon the opposition presented, defendants fail to make such requisite showing.

Any requested relief and/or remaining contentions not expressly addressed herein have nonetheless been considered and are rejected.

For all the foregoing reasons, it is hereby

ORDERED that the branch of plaintiff's motion for partial summary judgment on the issue of liability is granted; and it is further

ORDERED that the branch of plaintiff's motion to strike defendants' first, second, and fifth affirmative defenses for culpable conduct, failure to use a seatbelt and emergency situation is granted, and said affirmative defenses are stricken; and it is further

ORDERED that plaintiff is directed to serve a copy of this Decision and Order with Notice of Entry upon defendants within twenty (20) days from the date of entry.

This constitutes the Decision and Order of the Court.