Opinion
17192 Index No. 24773/20E Case No. 2022–01943
01-26-2023
Raymond REYES, Plaintiff–Respondent, v. Jared M. GROPPER, Defendant–Appellant, Truetox Laboratories, LLC, Defendant.
Lewis Johs Avallone Aviles, LLP, New York (David L. Metzger of counsel), for appellant. Law Office of Ryan S. Goldstein, PLLC, Bronx (Ryan S. Goldstein of counsel), for respondent.
Lewis Johs Avallone Aviles, LLP, New York (David L. Metzger of counsel), for appellant.
Law Office of Ryan S. Goldstein, PLLC, Bronx (Ryan S. Goldstein of counsel), for respondent.
Friedman, J.P., Moulton, Kennedy, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about January 12, 2022, which granted plaintiff's motion for summary judgment on liability and dismissed the affirmative defenses of comparative fault, unanimously affirmed, without costs.
"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident" ( Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010] ).
Plaintiff established prima facie that defendant was negligent by submitting his affidavit stating that he was travelling in the left lane of the express lanes on I–78 in New Jersey when defendant failed to properly brake his vehicle and struck plaintiff's vehicle in the rear. Although the court should not have considered the hearsay statements in the uncertified police report submitted by plaintiff (see Coleman v. Maclas, 61 A.D.3d 569, 569, 877 N.Y.S.2d 297 [1st Dept. 2009] ; Figueroa v. Luna, 281 A.D.2d 204, 205, 721 N.Y.S.2d 635 [1st Dept. 2001] ), such error was inconsequential, as plaintiff's affidavit, alone, was sufficient to satisfy his prima facie burden.
In opposition, defendant failed to provide a nonnegligent explanation for the accident. He submitted an affidavit explaining that the accident occurred because plaintiff stopped short when another vehicle suddenly entered the lane in front of plaintiff and then made an abrupt stop. This explanation was insufficient to rebut the presumption of defendant's negligence (see Morales v. Consolidated Bus Tr., Inc., 167 A.D.3d 457, 458, 89 N.Y.S.3d 163 [1st Dept. 2018] ; Morgan v. Browner, 138 A.D.3d 560, 560, 28 N.Y.S.3d 594 [1st Dept. 2016] ).
Plaintiff's motion was not premature, as information as to why defendant rear-ended plaintiff's vehicle was within defendant's own knowledge (see Rodriguez v. Garcia, 154 A.D.3d 581, 581, 62 N.Y.S.3d 267 [1st Dept. 2017] ; Castaneda v. DO & CO N.Y. Catering, Inc., 144 A.D.3d 407, 407, 39 N.Y.S.3d 857 [1st Dept. 2016] ).
Because the record was devoid of any evidence of plaintiff's culpable conduct, the affirmative defenses of comparative fault were correctly dismissed (see Vasquez v. Strickland, 211 A.D.3d 414, 177 N.Y.S.3d 482, 2022 N.Y. Slip Op. 06876 [1st Dept. 2022] ).