Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by plaintiff Donna Cafiero (hereinafter Cafiero) on December 26, 2019, under motion sequence one, for an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability as against the defendants VV Nail Spa Group, Inc., and Ai Sui Li (hereinafter Li and collectively as defendants). The motion is opposed by the defendants. Notice of motion Affirmation of Cafiero’s counsel in support Affidavit of Cafiero in support Memorandum of law in support Exhibits A to C Affirmation of defendants’ counsel in opposition Affirmation of Cafiero’s counsel in reply DECISION & ORDER BACKGROUND On June 10, 2019, Cafiero commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk’s Office. On December 26, 2019 VV Nail Spa Group, Inc. and Li joined issue by filing a joint verified answer. Cafiero’s verified complaint and affidavit allege the following salient facts. On February 20, 2018, at around 9:45 am, Cafiero was driving a 2012 Hyundai Sedan, bearing license plate number ACG4186 on Knapp Street at or near its intersection with Shore Parkway, in Brooklyn, New York. On the same date, place and time, LI was driving a 2014 Mercedes Benz, bearing license plate number GNK469, owned by co-defendant VV Nail Spa Group Inc., with the owner’s knowledge and consent (hereinafter the defendants’ vehicle). While Cafiero was stopped in traffic and waiting for an opportunity to merge onto Shore Parkway, she was struck in the rear by the defendant’s vehicle (hereinafter the subject accident). The subject accident was solely caused by Li’s negligent operation of the defendant’s vehicle. The collision caused Cafiero to sustain serious physical injuries. LAW AND APPLICATION It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (Poon v. Nisanov, 162 AD3d 804 [2nd Dept 2018], quoting CPLR 3212 [b]). The moving party’s submissions must show that there is no defense to the cause of action or that the cause of action or defense has no merit (Gobin v. Delgado, 142 AD3d 1134 [2nd Dept 2016]). Cafiero seeks an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability. Cafiero claims, among other things, that Li violated Vehicle and Traffic Law §1129 (a) by not keeping the defendants’ vehicle at a safe distance and speed while traveling behind Cafieros vehicle. 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 nonnegligent explanation for the collision (Modena v. M & S Mech. Services, Inc., 181 AD3d 802 [2nd Dept 2020], citing Tutrani v. County of Suffolk, 10 NY3d 906, 908 [2008]). In support of the motion, Cafiero submitted her own affidavit and an uncertified police report of the subject accident. Cafiero’s affidavit demonstrated that the front of Li’s vehicle struck the rear of the Cafiero’s vehicle while Cafiero was stopping or stopped to attempt to merge onto Shore Parkway (see Batashvili v. VelizPalacios, 170 AD3d 791, 792 [2nd Dept 2019]; Lopez v. Dobbins, 164 AD3d 776, 777 [2nd Dept 2016]). Cafiero offered the police report to admit the statement she gave the police at the time and place of the accident. The only evidence the defendants submitted was an affirmation of their counsel. The affirmation raised three arguments in opposition to plaintiff’s motion. First, the defendants claimed that the motion was premature because the parties had not yet completed discovery. Second, the defendants claimed that the police report annexed to plaintiff’s motion papers was uncertified and therefore inadmissible. Third, the defendants claimed that the plaintiff’s evidence did not demonstrate the absence of comparative fault. In order to establish that a summary judgment motion is premature, the nonmoving party must 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 moving party. 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 motion (Lazarre v. Gragston, 164 AD3d 574, 575 [2nd Dept 2018]). Here, the defendants failed to offer such an evidentiary. The admissions of an adverse party contained in an uncertified police report are admissible (see Pivetz v. Brusco, 145 AD3d 806 [2nd Dept 2016]). Plaintiff was not using the police report to admit the statements that Li made to the police at the time of the accident. Rather, she was offering the police report to admit the statement she gave the police at that time. Consequently, the Court agrees with the defendants that the uncertified police report is inadmissible for the purpose that the plaintiff intended (Harrinarain v. Sisters of St. Joseph, 173 AD3d 983, 983 [2nd Dept 2019]). Contrary to the defendants’ contention, the plaintiff was not required to demonstrate the absence of her own comparative negligence to be entitled to summary judgment on the issue of liability (Harrinarain, 173 AD3d at 984, citing Rodriguez v. City of New York, 31 NY3d 312 [2018]). Moreover, the affirmation of defendants’ counsel demonstrated no personal knowledge of the subject accident and, therefore, could not and did not provide a nonnegligent explanation for the collision. Consequently, Cafiero has made a prima facie showing of entitlement to summary judgment in her favor on the issue liability and the defendants have not raised a triable issue of fact. CONCLUSION The motion of plaintiff Donna Cafiero for an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability as against the defendants VV Nail Spa Group, Inc. and Ai Sui Li is granted. The foregoing constitutes the decision and order of this Court. Dated: September 8, 2020
