The following numbered papers were read on this motion: NYSCEF Document Numbers 39-63. DECISION AND ORDER Upon the foregoing papers, and having heard oral argument and a decision having been rendered on the record in open court1, the within motion is determined as follows. Plaintiffs Deon Crockwell and Tanisha Dorson were occupants of the vehicle Crockwell was operating2 on September 2, 2022, when allegedly they were struck in the rear by a vehicle owned by Defendant Jaguar Land Rover (“Jaguar Land Rover”) and operated by Defendant Romane Phanord (“Phanord”)3. Plaintiffs claim that they sustained personal injuries as a result. Both Defendants having answered, Plaintiffs move for summary judgment on the issue of liability. Plaintiffs support their motion with affidavits in which they swear that they were on the Van Wyck Expressway at or near Rockaway Boulevard, in Queens, stopped in the right northbound lane when suddenly they were rear-ended. Their vehicle had been stopped for three to five seconds before being rear-ended. Both denied contributing to the accident. (See NYSCEF Doc Nos. 49, 50.) A certified police report lists the driver of the vehicle striking them as Romane Phanord (a defendant herein) and the owner of the vehicle as Jaguar Land Rover (the other defendant herein). The officer who completed the report wrote, “At TPO V1 [Phanord] states he was coming off exit ramp when collided into V2″ (NYSCEF Doc No. 48). Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v. Prospect Hosp., 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]. The law concerning a plaintiff’s summary judgment motion on the issue of liability in a hit-inthe- rear case was recently set forth as follows: 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 (see Tutrani v. County of Suffolk, 10 NY3d 906 [2008]; Edgerton v. City of New York, 160 AD3d 809 [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’ ” (Witonsky v. New York City Tr. Auth., 145 AD3d 938, 939 [2016], quoting Nsiah-Ababio v. Hunter, 78 AD3d 672, 672 [2010]; see Xin Fang Xia v. Saft, 177 AD3d 823, 825 [2019]). “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” (Xin Fang Xia v. Saft, 177 AD3d 823, 825 [2019]; see Rodriguez v. City of New York, 31 NY3d 312 [2018]). Stops by a lead vehicle which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows (see Xin Fang Xia v. Saft, 177 AD3d at 826; Le Grand v. Silberstein, 123 AD3d 773, 775 [2014]). Moreover, an assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle (see Buchanan v. Keller, 169 AD3d 989, 992 [2019]; Brothers v. Bartling, 130 AD3d 554, 556 [2015]). Here, the plaintiff, in her affidavit in support of her motion, stated that she was stopped at a red traffic light when her vehicle was struck from behind by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that Persaud’s negligence was a proximate cause of the accident (see Rodriguez v. City of New York, 31 NY3d 312 [2018]; Xin Fang Xia v. Saft, 177 AD3d at 826). The defendants submitted an affidavit from Persad in opposition to the plaintiff’s motion. Persad asserted that after both his vehicle and the plaintiff’s vehicle had stopped for a red light, the plaintiff’s vehicle began to move forward when the light turned green and then abruptly stopped, causing his vehicle, which had begun to move forward, to come into contact with the rear of the plaintiff’s vehicle. In essence, this explanation amounts to nothing more than a claim that the plaintiff’s vehicle came to a sudden stop which, without more, failed to raise a triable issue of fact as to Persad’s liability (see Buchanan v. Keller, 169 AD3d at 992). Accordingly, we agree with the Supreme Court’s determination granting the plaintiff’s motion for summary judgment on the issue of liability. Comparative negligence on the part of the plaintiff, if any, which would offset the amount of damages, must abide the trial (see Rodriguez v. City of New York, 31 NY3d at 318-319). (Perez v. Persad, 183 AD3d 771, 771-772 [2d Dept 2020].) In the instant case, Plaintiffs’ affidavits, coupled with the certified police accident report, made out a prima facie showing that Defendant Phanord’s negligence was a proximate cause of the subject accident — Phanord struck the rear of their vehicle while it was stopped — and therefore was liable. As the nonmoving parties, Defendants bore the burden of rebutting the prima facie case by producing evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (a nonnegligent excuse for the striking of plaintiffs’ vehicle) that require a trial for resolution or tendering an acceptable excuse for the failure to do so. Defendant Phanord neither submitted an affirmation in opposition to Plaintiffs’ motion nor offered an acceptable excuse for the failure to do so. In opposition to Plaintiffs’ motion, Defendant Jaguar Land Rover submitted its attorney’s affirmation. He argued that Jaguar Land Rover is merely the owner of the vehicle operated by Phanord. At oral argument, counsel conceded that Vehicle and Traffic Law §388 imposes vicarious liability on Jaguar Land Rover should Defendant Phanord be found liable. However, in the instant action, Phanord and Jaguar Land Rover maintain separate legal representation. Jaguar Land Rover interposed a counterclaim against Plaintiffs and a cross-claim against Phanord. As the owner of the vehicle which struck Plaintiffs’ vehicle, Jaguar Land Rover had no firsthand knowledge of the accident. “[A]ny facts sufficient to raise triable issues are exclusively within the possession of the other parties…” (NYSCEF Doc No. 60 1). Jaguar Land Rover has not yet obtained depositions from Plaintiffs and Phanord. In particular, “Jaguar Land Rover has had no opportunity to depose Romane Phanord to obtain any information from him as to what led up to the accident and as to any factors that might constitute a nonnegligent explanation for the rear-end collision. All of that information is exclusively in his possession.” (Id. 3.) “Furthermore, Jaguar Land Rover has had no opportunity to depose the plaintiff driver or plaintiff passenger to find out exactly what the plaintiff driver was doing or what was going on in his vehicle with the other plaintiff in the moments leading up to the accident, all of which goes to a possible non-negligent explanation for the accident (id. 4). As for possible defenses to liability in this hit-in-the rear situation, Jaguar Land Rover posits that there might have been a sudden stop by the forward vehicle, unavoidable skidding, the forward vehicle’s possible abrupt lane change, or stopping without signaling by Crockwell (see id. 5. Jaguar Land Rover “currently has no facts at all regarding the accident that might allow it to raise such defenses or support its counterclaim of comparative negligence” (id.). Plaintiffs, in reply to the position taken by Jaguar Land Rover, claim that the latter did not provide an affidavit regarding the accident. That, of course, is accurate, and Jaguar Land Rover has asserted that it had no knowledge of the accident. Plaintiffs would impose a duty on Jaguar Land Rover to have investigated the accident in order to absolve itself of liability. (See NYSCEF Doc No. 62 8.) This ignores the question, however, as to why Plaintiffs have not submitted to depositions. Nowhere in Plaintiffs’ reply is there an explanation for not having done so. This Court’s review of the case folder documents filed on NYSCEF reveals that per a Compliance Conference Part order of January 5, 2024, depositions of all parties were to take place on or before March 5, 2024 (see NYSCEF Doc No. 39). That militates in favor of this Court agreeing with Jaguar Land Rover’s position. As the party with no knowledge of how the accident occurred, it would be unseemly to impose liability on it as a matter of law without the parties with knowledge of the accident having submitted themselves to an examination before trial. It is true that in most instances, where the defendant driver and owner of the rear vehicle fail to offer a nonnegligent explanation for the rear vehicle’s striking the rear of the forward vehicle, summary judgment on the issue of liability is granted to the moving plaintiffs (e.g. Figueroa v. MTLR Corp., 157 AD3d 861 [2d Dept 2018]; Franco v. Breceus. 70 AD3d 767 [2d Dept 2010]). It is also true that the reason provided for rejecting a defense that the plaintiff’s motion is premature — that discovery is necessary — is usually rejected because the defendant driver is in possession of and already had personal knowledge of the relevant facts of the accident and the mere hope or speculation that evidence might be uncovered is insufficient (e.g. Orlando v. Gonzalez, 222 AD3d 989 [2d Dept 2023]; Quintanilla v. Mark, 210 AD3d 713 [2d Dept 2022]; Turner v. Butler, 139 AD3d 715 [2d Dept 2016]; Abramov v. Miral Corp., 24 AD3d 397 [2d Dept 2005]). In the case at bar, Defendant Jaguar Land Rover indeed lacks any knowledge of the relevant facts of the accident. Nobody from this entity accompanied Defendant Phanord while Defendant Phanord was operating its vehicle. Defendant Jaguar Land Rover has retained a law firm separate from that which is representing Defendant Phanord. (This is due to Defendant Phanord’s legal representation being paid for by the insurer of his personally owned vehicle; Defendant Jaguar Land Rover’s legal representation is paid for by its own liability carrier.) Counsel for Jaguar Land Rover would not be able to contact Phanord to obtain an explanation of the accident; ethical considerations would proscribe such conduct. It is not beyond the realm of possibility that a proffered nonnegligent explanation for the accident’s occurrence might exist and be available to demonstrate a material issue of fact in opposition to summary judgment on liability sought by Plaintiffs. The knowledge concerning the details of the accident lies with Plaintiffs and Defendant Phanord, not with Defendant Jaguar Land Rover. “Should it appear from affidavits submitted in opposition to the [summary judgment] motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion…(CPLR 3212 [f]). The instant situation fits within the ambit of this provision. This case presents one of those infrequent hit-in-the-rear occasions when “the defendant submitted evidence suggesting that further discovery might lead to relevant evidence pertaining to the circumstances of the accident” (Corvino v. Schineller, 168 AD3d 812, 813 [2d Dept 2019] [motor vehicle accident]). “The plaintiff[s] moved for summary judgment before the parties had an adequate opportunity to conduct discovery, as little discovery had taken place and the depositions of the parties had not yet occurred” (id. at 812-813; see also Guo Ping Gu v. Malaxos, 192 AD3d 1087 [vehicle struck by another]). In another action seeking to recover damages for personal injuries alleged to result from operating a vehicle struck by another, the Second Department held: “A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment” (Village of Dobbs Ferry v. Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 198 AD3d 838, 839 [2021]; see Brea v. Salvatore, 130 AD3d 956, 956 [2015]). “A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party’s position may exist but cannot then be stated” (Brea v. Salvatore, 130 AD3d at 956; see CPLR 3212 [f]; Village of Dobbs Ferry v. Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 198 AD3d at 840). Under the circumstances here, where the plaintiff moved for summary judgment on the issue of liability prior to discovery and the record reflects that discovery might lead to relevant evidence pertaining to the circumstances of the accident, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability without prejudice to renew upon the completion of discovery (see CPLR 3212 [f]; Guo Ping Gu v. Malaxos, 192 AD3d 1087, 1087-1088 [2021]; Corvino v. Schineller, 168 AD3d 812, 812-813 [2019]; Sodhi v. 112 Park Enters., LLC, 147 AD3d 1000, 1001 [2017]). (Diller v. Mirto, 211 AD3d 912, 913 [2d Dept 2022].) More recently, the Supplemental Practice Commentary to McKinney’s CPLR included the following: There are more cases where summary judgment has been denied to a moving party because facts essential to justify opposition may exist but cannot be stated because they lie in the exclusive knowledge of the moving party (e.g. Corona v. HHSC 13th St. Dev. Corp., 197] A.D.3d [1025], ___ N.Y.S.3d ___, 2021 WL 4201629, 2021 N.Y. Slip Op. 05010 [1st Dep't. Sept. 16, 2021]; Arthur Brundage Inc. v. Morris, 189 A.D.3d 2032, 139 N.Y.S.3d 389 [3rd Dep't. 2020]). This particularly arises when a summary judgment motion is filed by a party before depositions are conducted or completed of the moving party (Barreto v. City of New York, 194 A.D.3d 563, 144 N.Y.S.3d 347 [1st Dep't. 2021]; Blackstock v. Accede, Inc., 194 A.D.3d 476, 148 N.Y.S.3d 443 [1st Dep't. 2021]). (Mark C. Dillon, Prac Commentaries, McKinney’s Cons Laws of NY, CPLR C3212:50.) The note of issue in this action is due January 24, 2025, and a conference in the Note of Issue- Final Conference Part is scheduled for December 12, 2024. Depositions were ordered to take place by March 5, 2024. Had Plaintiff and Defendant Phanord appeared for depositions by then, Defendant Jaguar Land Rover could have obtained the discovery it needed in order to meaningfully respond to Plaintiffs’ motion. There is still time in which the depositions can be held. Taking into account that Plaintiffs and Defendant Phanord have not submitted to depositions which would have provided Defendant Jaguar Land Rover with the information necessary to respond to Plaintiffs’ summary judgment motion, that Defendant Jaguar Land Rover lacks personal information how the accident transpired, that its attorney does not represent driver Defendant Phanord, that Defendant Jaguar Land Rover posited reasonable possible scenarios for the subject hit-in-the-rear accident, that the CPLR provides that facts essential to justify opposition may exist but cannot be stated by Defendant Jaguar Land Rover, and that there is case law supporting said Defendant’s position albeit not specifically on point to the situation where the driver and owner defendants have separate representation, this Court finds that Plaintiffs’ motion at this time should be denied.4 Defendant Jaguar Land Rover tendered an acceptable excuse for its failure to establish the existence of material issues of fact that would require a trial for resolution (see Zuckerman v. City of New York, 49 NY2d 557). Moreover, in order to meaningfully respond should this motion be made again, Defendant Jaguar Land Rover is entitled to examine Plaintiffs and Defendant Phanord at depositions. Toward that end, this Court shall mandate such depositions along with a proviso concerning the making of a repeat motion in the absence of the depositions. This is in accordance with CPLR 3212 (f), which permits the court to “make such other order as may be just.” In doing so this Court acknowledges the guidance of the Appellate Division, Second Department, that successive summary judgment motions are disfavored (see Corvino v. Schineller, 168 AD3d at 813). Accordingly, IT IS HEREBY ORDERED as follows: (1) Plaintiffs’ motion for summary judgment on the issue of liability is presently DENIED. (2) Plaintiffs and Defendant Romane Phanord shall submit to examination-before-trial depositions on or before October 31, 2024. Said depositions are to be scheduled by notice from Defendant Jaguar Land Rover to be issued no later than September 25, 2024. (3) In the event that Plaintiffs fail to appear for depositions by October 31, 2024, Plaintiffs shall be precluded from making any further motions for summary judgment on the issue of liability against Defendant Jaguar Land Rover, and Defendant Jaguar Land Rover is granted leave to protect its interests further by making a motion of its own. (4) In the event that Defendant Phanord fails to appear for a deposition by October 31, 2024, Defendant Jaguar Land Rover is granted leave to protect its interests further by making a motion of its own. (5) Any further motion by Plaintiffs for summary judgment on the issue of liability shall be considered only if they have submitted to depositions in accordance with this order and relevant provisions of law. CPLR 5513 (a) provides: “Time to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.” Dated: September 10, 2024
