Upon the following papers read on this motion for an order granting summary judgment against defendants on the issue of liability; Notice of Motion and supporting papers (Doc #11-17); Affirmation in Opposition and supporting papers (Doc #19); Reply Affirmation (Doc #20); it is, ORDERED that the motion by plaintiff Paul C. Lore for summary judgment on the issue of liability pursuant to CPLR §3212 is granted; and it is further ORDERED that defendants’ Second and Third affirmative defenses as to any issues of plaintiff’s culpable conduct are dismissed. Plaintiff Paul C. Lore commenced this action to recover damages for alleged personal injuries sustained as a result of a motor vehicle accident that occurred on December 11, 2017 at approximately 6:15 a.m. on the westbound Long Island Expressway (“LIE”)between exits 40 and 39, Village of Old Westbury, Nassau County, New York. Plaintiff now moves for partial summary judgment on the issue of defendants’ liability. In support of the motion, plaintiff submits the pleadings, the affirmation of counsel, a certified copy of the police report, and plaintiff’s sworn affidavit. In his affidavit plaintiff avers that on December 11, 2017 he was operating a 2008 HINO Flat-bed owned by Island Steel & Detailing Corp. traveling westbound on the LIE between exits 40 and 39, in the Village of Old Westbury, Nassau County. At the time the roadway was dry, and while operating his vehicle he was struck in the rear by a vehicle operated by defendant Tomasz Strekowski and owned by defendant TNM Transportation Inc. In opposition defendants submit their attorneys affirmation and the sworn affidavit of defendant Strekowski who avers that at the time of the accident there was heavy traffic, the lighting conditions were dark and he did not observe plaintiff’s vehicle come to a stop as its brake lights were not functioning. Plaintiff submits the affirmation of counsel in reply. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The movant has the initial burden of proving entitlement to summary judgment, failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form to establish a factual issue sufficient to require a trial (CPLR 3212 [b]; see Zuckerman v. City of New York, 49 NY2d 557 [1980]). The court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility (Vega v. Restani Corp., 18 NY3d 499 [2012]). It is well settled that when a driver of a motor vehicle approaches another automobile from the rear, he or she is bound to maintain a safe rate of speed, to keep control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law §1129 [a]; Jimenez v. Ramirezi, 171 AD3d 902 [2d Dept 2019]; Gibson v. Levine, 95 AD3d 1071, [2d Dept 2012]; Nsiah-Ababio v. Hunter, 78 AD3d 672 [2d Dept 2010]). Moreover, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a non-negligent explanation for the collision to rebut the inference of negligence (see Tutrani v. County of Suffolk, 10 NY3d 906 [2008]; Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 AD3d 1033 [2d Dept 2018]; Edgerton v. City of New York, 160 AD3d 809 [2d Dept 2018]). Plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting evidence that his vehicle was struck in the rear by the vehicle driven by defendant (Batashvili v. Veliz-Palacios, 170 AD3d 791 [2d Dept 2019]; Niyazov v. Hunter EMS, Inc., 154 AD3d 954 [2d Dept 2017]; Witonsky v. New York City Tr. Auth., 145 AD3d 938 [2d Dept 2016]; Scheker v. Brown, 85 AD3d 1007 [2d Dept 2011]). Therefore the burden shifted to defendants to establish the existence of a material issue of fact requiring a trial (see generally Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). In opposition defendants have failed to rebut the inference of negligence by failing to provide a non-negligent explanation for the collision. A driver, as a matter of law, is charged with seeing what there is to be seen on the road, that is, what should have been seen, or what is capable of being seen at the time, and must exercise reasonable care under the circumstances to avoid an accident (see Lu Yuan Yang v. Howsal Cab Corp., 106 AD3d 1055 [2d Dept 2013]; Wilson v. Rosedom, 82 AD3d 970, 919 NYS2d 59 [2d Dept 2011]). Here there is no indication in the police report to support defendant Strekowski’s contention that plaintiff’s brake lights were not functioning, further such a conclusory allegation is insufficient, without more, to raise a triable issue of fact as to whether the alleged malfunctioning brake lights were a proximate cause of the accident (see Bene v. Dalessio, 135 AD3d 679 [2d Dept 2106]). Moreover a defendant’s allegation that he did not view plaintiff’s brake lights before a collision does not adequately rebut the inference of negligence (see Bene v. Dalessio, supra; Balducci v. Velasquez, 92 AD3d 626 [2d Dept 2016]; Cortes v. Whelan, 83 AD3d 763 [2d Dept 2011]; Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept 2004]). Defendants’ submission raise no credible questions of fact as to defendants’ liability requiring a trial. Finally defendants’ argument that plaintiff’s motion is premature because discovery is outstanding is without merit as defendant has failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiffs (see CPLR 3212[f]; Abramov v. Miral Corp., 24 AD3d 397 [2d Dept 2005]; Niyazov v. Bradford, 13 AD3d 501 [2d Dept 2004]). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff’s motion (see Fenko v. Mealing, 43 AD3d 856 [2d Dept 2007]). For the foregoing reasons plaintiff’s motion seeking summary judgment on the issue of liability (Seq. #001) is granted and defendants’ Second and Third affirmative defenses alleging culpable conduct are stricken. This constitutes the Order and decision of the Court. Dated: September 9, 2019
