Opinion
922 Index No. 30856/19E Case No. 2022–03096
10-31-2023
Ana FERREIRA, Plaintiff–Respondent, v. E–J ELECTRIC INSTALLATION COMPANY et al., Defendants–Appellants.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Kelly A. Breslauer of counsel), for respondent.
Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Kelly A. Breslauer of counsel), for respondent.
Kapnick, J.P., Gesmer, Scarpulla, Rodriguez, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about December 21, 2021, which granted plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defenses of culpable conduct, contributory negligence, and assumption of risk, unanimously affirmed, without costs.
The court properly granted plaintiff summary judgment on liability. Plaintiff established prima facie that defendants were negligent by submitting her affidavit averring that defendants' vehicle struck her vehicle from behind and, in opposition, defendants failed to come forward with a nonnegligent explanation for the accident (see Reyes v. Gropper, 212 A.D.3d 565, 565, 183 N.Y.S.3d 369 [1st Dept. 2023] ; Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010] ). Defendant driver Jose Arana averred in his affidavit that he was behind plaintiff's vehicle in slow but steady traffic when he decided to change lanes, and that as he accelerated while moving from the right lane into the left lane, plaintiff's car suddenly stopped, causing his truck to strike the rear corner of plaintiff's vehicle. Defendants' explanation that plaintiff's car stopped short was insufficient to rebut the presumption of defendants' negligence (see id. ; Padilla v. Zulu Servs., Inc., 132 A.D.3d 522, 522–523, 17 N.Y.S.3d 855 [1st Dept. 2015] ).
Because plaintiff established her own absence of negligence, and defendants failed to submit any evidence sufficient to raise an issue of fact as to her culpable conduct, the affirmative defenses based on her fault, as well as the irrelevant assumption of risk defense, were properly dismissed (see Vasquez v. Strickland, 211 A.D.3d 414, 414–415, 177 N.Y.S.3d 482 [1st Dept. 2022] ). Plaintiff's motion was not premature because information as to why defendants' vehicle rear-ended plaintiff's car was within defendants' own knowledge (see Reyes, 212 A.D.3d at 565, 183 N.Y.S.3d 369 ; Mirza v. Tribeca Auto. Inc., 189 A.D.3d 448, 137 N.Y.S.3d 13 [1st Dept. 2020] ).