Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion for summary judgment: Papers NYSCEF Doc. No(s). Notice of Motion, Affirmation in Support, Statement of Material Facts, Exhibits Thereto 40-49 Affirmation(s) in Opposition 75-77 Reply Affirmation(s) 78-79 DECISION/ ORDER In this motor vehicle negligence action, plaintiff, Clistenes Garcia Brito (“Plaintiff”), seeks an Order, pursuant to CPLR §3212, granting him summary judgment on the issue of liability arguing that defendant, Elvis J. Ibarra (“Defendant”), rear-ended plaintiff’s vehicle and thus is liable for his damages as a matter of law. Defendant opposes the motion asserting that there are issues of fact as to plaintiff’s comparative negligence. For the reasons stated below, plaintiff’s motion is granted. Plaintiff’s cause of action arises from personal injuries he allegedly sustained on August 27, 2019, when a vehicle owned and operated by defendant came in contact with his vehicle while on the southbound FDR Drive in the area of East 118th Street in New York County, New York. In support of the motion, plaintiff submits his own and defendant’s deposition transcripts, as well as the transcripts of co-plaintiffs in a joined case1, Teresa Aquino De Tejada (“Aquino”) and William Tejada Tejada (“Tejada”), who were passengers in plaintiff’s vehicle at the time of the subject accident. Pertinent here, plaintiff testified that, at the time of the accident, he was travelling in the middle lane of the FDR Drive at approximately 40 mph in medium traffic conditions when a vehicle approximately two car lengths in front of him stopped. Plaintiff testified that he was in the process of braking in order to avoid coming in contact with the vehicle in front of him when he felt the defendant’s vehicle strike his from behind and propel him forward into the rear of the car in front of him. Significantly, both passengers Aquino and Tejada concurred in plaintiff’s account of the rear-end impact but neither recalled any impact in the front of plaintiff’s vehicle. Similarly, defendant admitted that he was in an accident while on the FDR Drive on the day in question and acknowledged that he could not avoid hitting the vehicle in front of him (plaintiff’s vehicle) when the incident occurred. When a rear-end collision occurs, the driver of the front vehicle is entitled to summary judgment on liability unless the driver of the following, rear-ending vehicle provides a non-negligent explanation for causing the accident (see VTL §1129(a); see also Santana v. Danco Inc, 115 AD3d 560 [1st Dept 2014]; Santana v. Tic-Tak Limo Corp, 106 AD3d 572 [1st Dept 2013]). A claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence (Bajrami v. Twinkle Cab Corp, 147 AD3d 649 [1st Dept 2017]). Defendant has failed to submit admissible evidence sufficient to raise a triable issue of fact as to his fault for the subject accident. In opposition to the motion, defendant submits an uncertified police report, which this court is bound to disregard as inadmissible hearsay (Coleman v. Maclas, 61 AD3d 569 [1st Dept 2009]), and his counsel’s affirmation, which is also inadmissible because his counsel does not have personal knowledge of the facts of the accident sub judice (Johnson v. Phillips, 261 AD2d 269 [1st Dept 1999]). That said, even if this court were to consider the statement purportedly made by plaintiff to the police, to wit, that he first rear-ended the non-party first driver’s vehicle prior to being rear-ended by the defendant, such a statement would not qualify as an admission against interest sufficient to raise a question of fact as between the parties in this action. To be sure, the driver of the unidentified first vehicle in this three-car melee, who is reflected in the police report as having “left the scene”, has not commenced any legal action against the plaintiff of which this court is aware. Were such a case to exist, then, in that instance, plaintiff’s acknowledgement that he first rear-ended that vehicle might indeed serve as an admission against interest establishing in that action that he breached his duty of care to that plaintiff (see Kemenyash v. McGoey, 306 AD2d 516 [2nd Dept 2003][admission against interest in police report admissible in evidence][emphasis provided]). That is not the case here. In this action, the defendant was required to maintain a sufficiently safe distance to bring his vehicle to a safe stop without impacting the rear of plaintiff’s vehicle as a matter of law (Corrigan v. Porter Cab Corp., 101 AD3d 471 [1st Dept 2012]; quoting, Agramonte v. City of New York, 288 AD2d 75 [1st Dept 2001]; VTL §1129). That is the controlling and prevailing rule, and the facts of this case present no basis upon which to challenge same. Accordingly, it is hereby, ORDERED that plaintiff, Clistenes Garcia Brito’s, motion for partial summary judgment on the issue of liability is GRANTED; and it is further, ORDERED that plaintiff, Clistenes Garcia Brito, shall serve a copy of this Order with Notice of Entry within thirty (30) days of entry of this Order. The foregoing constitutes the Decision and Order of the Court. Dated: December 17, 2024
