The following numbered papers E21-E34 read on this motion by Plaintiff for an order pursuant to CPLR 3212(a) and (c), granting the following: A. Pursuant to CPLR §3212, granting summary judgment in favor of the plaintiff and against defendants on the issue of liability; and/or B. Dismissing the affirmative defenses raised in defendant’s answer as follows: The Second Affirmative Defense alleging comparative negligence, and/or The Seventh Affirmative Defense alleging failure to use seat-belts; C. Pursuant to CPLR §3212, granting summary judgment in favor of plaintiff holding plaintiff free of any comparative fault; and/or D. Directing a trial on the issue of damages only. PAPERS NUMBERED Notice of Motion-Affirmations-Exhibits E21-E29 Affirmations in Opposition E30-E33 Reply Affirmation E34 Upon the foregoing papers, it is ordered that Plaintiff’s motion is granted for the following reasons: According to the Complaint, on September 22, 2019, the vehicle owned by Defendant M. F. AUTO LEASING INC. and operated by Defendant ASAD KHAN (Khan) came into contact with the vehicle operated by Plaintiff MARTA BENEJAM (BENEJAM) at or near the intersection of 53rd Street and 2nd Avenue, City of New York, State of New York. In the first branch of the motion, Plaintiff moves for summary judgment against Defendants on the issue of liability. Plaintiff submits, among other things, an uncertified police report and her deposition transcript in support of the instant motion. Plaintiff testified at her deposition that she was wearing her seatbelt and was stopped at a red light, when Defendants’ vehicle struck her vehicle in the rear. Plaintiff also testified that when she first saw the traffic light above the intersection where the accident occurred, she began to slow her vehicle because she noticed the light was yellow. When the traffic light turned red, she “was already at a full stop” (E28). Plaintiff also argues that Defendants are precluded from testifying or offering any evidence in opposition to this motion or at trial pursuant to the stipulation dated February 8, 2022. The Court notes that the Honorable Laurentina S. McKetney Butler “ORDERED, that defendant Khan is precluded from offering testimony at the time of trial pursuant to the Stipulation dated February 8, 2022, executed by all parties” (E20). In opposition, Defendants argue, among other things, that they are only precluded from testifying at trial and not from offering other evidence in opposition to the instant motion, such as an affidavit. Defendants submit, among other things, the affidavit of defendant Khan. They argue Plaintiff’s motion for summary judgement should be denied because there are issues of fact regarding how the accident occurred, specifically regarding the color of the traffic light at the time of the accident and whether Plaintiff stopped abruptly. In his affidavit, Khan writes that the traffic light was green, and Plaintiff “suddenly stopped short” just prior to the collision (E32). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557 [1980]). 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, 853 [1985]). Although a Plaintiff does not have to demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a Defendant’s liability (see Rodriguez v. City of New York, 31 NY3d 312, 324-325 [2018]), the issue of a Plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the Plaintiff has moved for summary judgment dismissing a Defendant’s affirmative defense of comparative negligence (Poon v. Nisanov, 162 AD3d 804, 808 [2d Dept. 2018]). “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” (Catanzaro v. Edery, 172 AD3d 995, 996 [2d Dept. 2019]; 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 nonnegligent explanation for the collision” (Arslan v. Costello, 164 AD3d 1408 [2d Dept. 2018]). Although a sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, “must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead” (Catanzaro v. Edery, supra). Here, the Court finds that Plaintiff established her prima facie entitlement to summary judgment against Defendants on the issue of liability through the submission of Plaintiff’s deposition transcript. The Court however notes that the uncertified police report submitted by Plaintiff is inadmissible. Although the report is signed at the bottom by the reporting police officer, it is not certified as a business record, and Plaintiff does not submit an affidavit or other sworn evidence from someone with personal knowledge establishing the police report’s authenticity or accuracy (see Nationwide Gen. Ins. Co. v. Bates, 130 AD3d 795, 796 [2d Dept 2015] (stating, “the uncertified police accident reports submitted by the plaintiff were not admissible.”); see also Adobea v. Junel, 114 AD3d 818, 820 [2d Dept 2014]; Clear Water Psychological Services PC v. Am. Tr. Ins. Co., 54 Misc 3d 915, 917 [Civ Ct 2016])). In determining whether Defendants raised a triable issue of fact, this Court must decide whether to consider defendant Khan’s affidavit, submitted in opposition to the instant motion. This Court notes that the facts of this case are highly similar to those in Ratut v. Singh, 186 Misc 2d 350 [Civ Ct 2000], a hit-in-the-rear motor vehicle accident case, where the court held that the “affidavit of following driver, who was precluded from testifying at trial due to his failure to appear for examination before trial, could not be relied upon to establish a genuine issue of material fact as to liability.” The Ratut court further noted that “[i]t is manifestly unjust to permit the use of party’s affidavit to defeat a motion for summary judgment when that party avoided examination under oath to the point of preclusion.” (Ratut v. Singh, supra). This Court agrees. As such, this Court finds that Defendants failed to raise any triable issues of fact. Accordingly, the branch of Plaintiff’s motion seeking summary judgment against Defendants on the issue of liability is granted. The branch of Plaintiff’s motion seeking a finding that she was not comparatively at fault is granted. The branch of the instant motion seeking dismissal of Defendants’ affirmative defenses alleging Plaintiff was comparatively negligent and alleging Plaintiff failed to use a seat belt are also granted for the above reasons. The Court finds that Plaintiff established her prima facie entitlement to dismissal of Defendants’ affirmative defenses and/or contributary negligence through the submission of her deposition. The Court further finds that Defendants failed to raise any triable issues of fact. The remaining branches of Plaintiff’s motion, requesting a trial for the purpose of assessing damages and setting this matter down for an assessment of damages pursuant to CPLR §3212 is also granted for the reasons set forth above. Accordingly, this matter shall proceed to a trial on the issue of damages only. Dated: May 1, 2023
