The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 9-13; 17-23 Answering Papers Reply Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order Plaintiffs move this Court unopposed for an Order granting summary judgment against defendants on the issue of liability and precluding defendants from introducing plaintiffs’ deposition transcripts at trial for any reason based upon defendants’ failure to produce those transcripts during discovery (Motion Sequence 001). Defendant on the counterclaim, plaintiff Jageshnauth Mahabir, moves this Court unopposed for an Order granting summary judgment dismissal of the counterclaim alleged against him by defendants (Motion Sequence 002). Having considered both motions, it is the determination of this Court to grant summary judgment against defendants on the issue of liability for the happening of the rear-end motor vehicle accident giving rise to this action, and to dismiss defendants’ counterclaim alleged against the driver of plaintiffs’ vehicle, Jageshnauth Mahabir. The request for preclusion is denied without prejudice to renewal upon the submission of proper papers. The accident occurred on November 1, 2016, at approximately 8:05 a.m., on Union Boulevard, in Islip, Suffolk County New York. It is undisputed that the front of defendants’ vehicle struck the rear of plaintiffs’ vehicle that was either completely stopped or was moving very slowly. A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision (McCoy v. Zaman, 67 AD3d 653 [2d Dept 2009]; Velasquez v. Denton Limo., Inc., 7 AD3d 787 [2d Dept 2004]). The Court recognizes that summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the defendants (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). In support of Motion Sequence 001 and Motion Sequence 002, plaintiffs and plaintiff on the counterclaim submit, inter alia, the deposition testimony of the defendant, Christopher M. Evans, who was operating defendants’ vehicle at the time of the accident. Evans’ testimony establishes that he was on his way to work when the accident occurred. He was headed westbound on Union Boulevard. He admitted seeing plaintiffs’ vehicle twenty (20) feet in front his vehicle when he first saw it. When Evans first saw plaintiffs’ vehicle, it was stopped, or it may have been moving very slowly according to Evans. Traffic was light and Evans also saw plaintiffs’ vehicle’s brake lights illuminated. Evans testified that he applied his brakes when he first saw plaintiffs’ vehicle. Evans swerved to his left in an unsuccessful attempt to avoid hitting plaintiffs’ vehicle. Evans’ passenger side front bumper struck plaintiffs’ vehicle’s rear bumper. Evans also testified that just prior to the accident at 8:05 a.m., he was headed westbound when he saw plaintiffs’ vehicle from 20 feet away, with its brake lights illuminated, but that he looked in his rearview mirror and “so the sun temporarily, I guess, blinded me [] very shortly after I guess [plaintiff] had entered the roadway from [] his apartment complex, so he wasn’t there one second and like I said, the sun was there and the next second he was right there with his brakes on.” Evans did not supply any reason whatsoever for looking away from the roadway in front of him and into his rearview mirror while he was traveling forward toward plaintiffs’ vehicle; accordingly, his testimony does not constitute a non-negligent explanation for the rear-end collision. Plaintiffs also offer their own affidavits in support of Motion Sequence 001 that are in accord with defendant’s testimony admitting that Evans’ vehicle struck plaintiffs’ vehicle in the rear. Each of the plaintiffs also attest that it was daylight and the roadway where the accident occurred was straight and dry. Since a driver of a vehicle approaching from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions, and also to see what should be seen, the foregoing evidence is sufficient to establish plaintiffs’ prima facie entitlement to summary judgment as a matter of law on the issue of liability for the happening of the subject accident, as well as to establish prima facie entitlement to dismissal of the counterclaim (see Cajas-Romero v. Ward, 106 AD3d 850 [2d Dept 2013]). Notably, the instant motions are unopposed and defendants’ answer, which is not verified by defendants, is insufficient to raise any issue of fact. Defendants do not themselves raise an emergency doctrine defense in their answer. It is plaintiffs’ counsel “[a]nticipating defendant’s emergency doctrine argument that the sun temporary (sic) blinded defendant prior to the accident” that brings this issue before this Court. Under the emergency doctrine, “when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing the alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” (Caristo v. Sanzone, 96 NY2d 172, 174 [2001]; see also Lifson v. City of Syracuse, 17 NY3d 492 [2011]). This Court does not find that defendant’s testimony constitutes a qualified emergency. In fact, the emergency doctrine is typically inapplicable to routine rear-end traffic accidents (Sass v. Ambu Trans, Inc., 238 AD2d 570 [2d Dept 1997]; McCarthy v. Miller, 139 Ad2d 500 [2d Dept 1988]). It cannot be considered a sudden and unexpected circumstance that the sun can interfere with one’s vision as it rises in the east. Here, however, defendant was traveling away from the direction of the sun’s rising, saw plaintiffs’ vehicle from 20 feet away with its brake lights illuminated, and without any explanation as to why, he testified that he looked in his rearview mirror as he was traveling forward, toward plaintiffs’ vehicle. Moreover, his testimony establishes that he is very familiar with the area of the accident, having lived on the street where the accident occurred for approximately fifteen years prior thereto and less than a half-mile from the accident scene, and that he was on his way to his place of employment where he had worked for twelve years. “This is not to say that sun glare can never generate an emergency situation, but under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency” (Lifson, supra at 498). That branch of plaintiffs’ motion for summary judgment against defendants on the issue of liability is granted; however, the branch of plaintiffs’ motion seeking to preclude defendants from introducing plaintiffs’ deposition transcripts at trial pursuant to CPLR § 3126 is denied since plaintiffs do not supply evidence of an order for disclosure of same. The denial of this branch of plaintiffs’ motion is without prejudice to renewal upon the submission of appropriate and admissible proof, as well as legal authority for their position (Motion Sequence 001). The motion for summary judgment dismissal of the counterclaim alleged against plaintiff Jageshnauth Mahabir is granted in its entirety (Motion Sequence 002). The foregoing constitutes the Decision and Order of this Court. Dated: November 7, 2019 Riverhead, NY FINAL DISPOSITION [ ] NON-FINAL ISPOSITION [X]
