West v Callender

Supreme Court, Queens County

Decided on April 28, 2026

Index No. 717353/2023

Karen Lin, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, plaintiff Richard West's motion for summary judgment, and defendant Jamonica Bahadur (Bahadur)'s cross-motion for summary judgment, are determined as follows:

Plaintiff commenced this action to recover damages for personal injuries sustained in a motor vehicle accident that occurred on June 21, 2022, at approximately 5:42 a.m., at the intersection of Guy R. Brewer Boulevard and 110th Avenue in Queens County. Plaintiff avers that he was a passenger on an MTA bus operated by defendant Andrew Callender, within the scope of his employment for defendant MTA Bus Company, when the bus struck the rear of a vehicle owned and operated by defendant Bahadur. Plaintiff now moves for an order granting partial summary judgment on the issue of liability as against defendants Callender and MTA Bus Company, dismissing said defendants' affirmative defenses alleging culpable conduct on the part of the plaintiff and the failure to use a seatbelt. Defendant Bahadur cross-moves for summary judgment dismissing all claims and cross-claims as against her. Defendants Callender and MTA Bus Company oppose the motion and cross-motion.

It is well established that the proponent of a summary judgment motion must establish a prima facie 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]). Upon this showing, the burden shifts to the party opposing the motion 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 no genuine issue exists to be resolved at trial, the case should be summarily decided (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

A plaintiff is no longer required to demonstrate freedom from comparative negligence in order to establish a prima facie entitlement to summary judgment (see Rodriguez v City of New York, 31 NY3d 312 [2018]). However, while a plaintiff is not required to establish 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 alleging culpable conduct on the part of plaintiff (see Sapienza v Harrison, 191 AD3d 1028, 1029 [2d Dept 2021]).

"A driver of a vehicle approaching another vehicle from the rear is required to maintain a [*2]reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Catanzaro v Edery, 172 AD3d 995, 996 [2d Dept 2019], quoting Wilansky v New York City Tr. Auth., 145 AD3d 938, 939 [2d Dept 2016]; see Vehicle and Traffic Law § 1129 [a]). "A rear-end collision 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 collision" (Diamond v Comins, 194 AD3d 784, 784 [2d Dept 2021]; see Sroor v Marziano-Fontana, 229 AD3d 581, 583 [2d Dept 2024]; Catanzaro v Edery, 172 AD3d 995, 996 [2d Dept 2019]).

In support of the motion, plaintiff submits, among other things, an attorney affirmation, his affidavit, a dashcam video produced by the MTA pursuant to a FOIL request, and a certified police accident report. Plaintiff attests in his affidavit that he was a passenger on an MTA bus that was involved in the subject accident. He further attests that the bus struck the vehicle owned and operated by defendant Bahadur in the rear, which was at a complete stop at the time of the impact. The certified police accident report reflects that defendant Bahadur stated that she came to a stop at the light when she was struck from the rear. The report further reflects that defendant Callender stated that the lead vehicle applied the brakes aggressively at a yellow traffic light, and then "caus[ed] him to collide with her." Contrary to defendants' contention, the portion of the police accident report that contained Callender's admission is admissible (see Liu v Lowe, 173 AD3d 946, 947 [2d Dept 2019]; Jackson v Trust, 103 AD3d 851, 852 [2d Dept 2013]).

With respect to the dashcam video, a video may be authenticated by a witness or videographer's testimony that the video shows what he or she saw and that it was not altered or edited; absent this, testimony, expert or otherwise, may also establish that a video truly and accurately depicts what was before the camera (see Zegarelli v Hughes, 3 NY3d 64, 69 [2004]; People v Patterson, 93 NY2d 80, 84 [1999]; Torres v Hickman, 162 AD3d 821, 822-23 [2d Dept 2018]). Here, while plaintiff attests in his affidavit that the video fairly and accurately depicts the accident, defendants Callender and MTA Bus Company contend that plaintiff testified on November 15, 2022, in a statutory hearing, that he could not see out the front window of the bus where the driver was. Plaintiff, in reply, avers that the video was provided by the MTA itself pursuant to a FOIL request, and CPLR 4540-a creates a rebuttable presumption of authenticity for materials created and disclosed by a party.

CPLR 4540-a was enacted to "eliminate the needless authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure" (Sponsor's Mem, Bill Jacket, L 2017, ch 366). The legislature recognized that where a party has responded to a litigation demand by producing its own documents, that party has "implicitly acknowledged their authenticity," and that a simple objection to admissibility for absence of authentication in such cases "should be summarily overruled" (id.). The producing party's act of production is akin to an admission of authenticity or genuineness, and "a mere naked 'objection' based on lack of authenticity," without actual evidence of forgery, fraud, or some other defect in authenticity, is insufficient to rebut the presumption afforded by the statute (id.).

The same spirit and purpose of CPLR 4540-a applies here. The record reflects that on July 11, 2023, plaintiff submitted a FOIL request to the MTA seeking "ANY AND ALL FOOTAGE OF THE FOLLOWING ACCIDENT: Accident occurred at approximately 5:39 a.m. on June 21st, 2022. Location of accident was the intersection of Guy R Brewer Boulevard and [*3]110th Avenue. Driver of bus was Andrew Callender. Bus # was 5406. License plate was AX6996." On July 17, 2023, the MTA FOIL Records Access Center responded with the video, and instructions on how to play the video, pursuant to plaintiff's FOIL request. The MTA, as a public agency, is subject to the compulsory disclosure requirements of the Freedom of Information Law through its official channels (see Public Officers Law § 84 et seq.), and its production of records it authored and maintained reflects the same implicit acknowledgment of authenticity that the legislature sought to recognize in enacting CPLR 4540-a.^FN1 To require a party to bear the additional burden of authenticating records produced pursuant to the Freedom of Information Law would impose the very unnecessary burden that the legislature sought to eliminate (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Law of NY, CPLR 4540-a [Note: online version]; Sponsor's Mem, Bill Jacket, L 2017, ch 366). Moreover, defendants do not contend that the video was altered, edited, or inaccurate. Any remaining issue as to the chain of custody of the video goes to the weight of the evidence, not its admissibility (see People v Oquendo, 152 AD3d 1220, 1221 [4th Dept 2017], quoting People v Hawkins, 11 NY3d 484, 494 [2008]). Accordingly, the video is admissible.

Upon the evidence presented, plaintiff has established a prima facie case of negligence through his affidavit, the video, and the certified police report, which reflect that the defendant bus struck the vehicle owned and operated by defendant Bahadur in the rear while said vehicle was stopped at a red traffic signal. The burden then shifts to defendants Callender and MTA Bus Company to rebut the inference of negligence by providing a non-negligent explanation for the accident.

In opposition, defendants Callender and MTA Bus Company submit an attorney affirmation and plaintiff's deposition testimony. Here, plaintiff's testimony is offered solely to contend that plaintiff lacked personal knowledge of whether defendant Bahadur's vehicle was at a complete stop at the time of the accident, and therefore fails to provide a non-negligent explanation. The attorney affirmation bears no probative value or evidentiary significance and is thus unavailing to raise a triable issue of material fact as to defendants' non-negligent explanation (see Nerayoff v Khorshad, 168 AD3d 866, 867 [2d Dept 2009]; Zuckerman, 49 NY2d at 560). A sudden stop, in and of itself, is insufficient to raise a triable issue of material fact for a non-negligent explanation for a rear-end accident (see Edgerton v City of NY, 160 AD3d 809, 811 [2d Dept 2018]). The remaining contention that neither defendant Bahadur nor Callender have been deposed and no affidavit has been provided as to involvement is unavailing to preclude summary judgment (see Suero-Sosa v Cardona, 112 AD3d 706, 708 [2d Dept 2013]). Accordingly, the branch of plaintiff's motion for partial summary judgment on the issue of liability against defendants Callender and MTA Bus Company is granted.

With respect to the branches of plaintiff's motion to dismiss defendants Callender and MTA Bus Company's affirmative defenses of culpable conduct and failure to use a seatbelt, [*4]plaintiff was a passenger on the bus and there is no evidence that suggests that plaintiff bore any fault in the happening of the accident (see Houston v McQuiller, 232 AD3d 732, 735 [2d Dept 2024]; Silva v Rabbani, 227 AD3d 1026, 1029 [2d Dept 2024]). Said defendants in their opposition to plaintiff's motion submitted no opposition to these branches of the motion. Accordingly, the branches of plaintiff's motion to dismiss defendants Callender and MTA Bus Company's affirmative defenses of culpable conduct and failure to use a seatbelt are granted.

The Court now turns to defendant Bahadur's cross-motion for summary judgment. Defendant Bahadur attests in her affirmation that she gradually brought her vehicle to a stop at the red traffic signal and was stopped for at least five seconds before the bus struck her vehicle in the rear. The record is devoid of any evidence that defendant Bahadur bore any culpability in the happening of the accident. Defendants Callender and MTA Bus Company submit no admissible evidence demonstrating the presence of a triable issue of fact as to defendant Bahadur's conduct. Accordingly, the cross-motion of defendant Bahadur for summary judgment dismissing all claims and cross-claims asserted against her is granted.

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 against defendants Callender and MTA Bus Company is granted; and it is further

ORDERED that the branch of plaintiff's motion to dismiss defendants Callender and MTA Bus Company's affirmative defense alleging culpable conduct on the part of plaintiff is granted, and said affirmative defense is dismissed; and it is further

ORDERED that the branch of plaintiff's motion to dismiss defendants Callender and MTA Bus Company's affirmative defense alleging failure to use a seatbelt is granted, and said affirmative defense is dismissed; and it is further

ORDERED that the cross-motion of defendant Bahadur for summary judgment dismissing all claims and cross-claims asserted against her is granted; and it is further

ORDERED that plaintiff shall serve a copy of this Order with Notice of Entry upon all parties within twenty (20) days from the date of entry.

This constitutes the Decision and Order of the Court.

Dated: April 28, 2026

Jamaica, New York

Hon. Karen Lin

Justice of the Supreme Court