ELIHU v. NICOLEAU (2019)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about August 6, 2018, which granted plaintiffs' separate motions for partial summary judgment on the issue of liability and for summary judgment dismissing the counterclaim against plaintiff Israel Elihu, unanimously affirmed, without costs.

The court providently exercised its discretion in entertaining and deciding plaintiffs' successive motions for summary judgment.  The motions were made on the basis of new evidence (see Brown Harris Stevens Westhampton LLC v. Gerber, 107 A.D.3d 526, 968 N.Y.S.2d 32 [1st Dept. 2013];  cf. Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 625–626, 24 N.Y.S.3d 1 [1st Dept. 2015] ).  In addition, they enhanced judicial efficiency, since they relieved the court and the movants of the burden of a plenary trial (see Landmark Capital Invs., Inc. v. Li–Shan Wang, 94 A.D.3d 418, 419, 941 N.Y.S.2d 144 [1st Dept. 2012];  Varsity Tr. v. Board of Educ. of City of N.Y., 300 A.D.2d 38, 39, 752 N.Y.S.2d 603 [1st Dept. 2002] ).

The court also properly awarded plaintiffs partial summary judgment on the issue of liability, and correctly dismissed defendants' counterclaim against plaintiff Israel Elihu.  Plaintiffs met their prima facie burden by demonstrating that they were stopped or stopping in stop go traffic when they were rear-ended by the defendants' vehicle (see e.g. Bajrami v. Twinkle Cab Corp., 147 A.D.3d 649, 46 N.Y.S.3d 879 [1st Dept. 2017];  Chowdhury v. Matos, 118 A.D.3d 488, 987 N.Y.S.2d 132 [1st Dept. 2014];  Cartagena v. Martinez, 112 A.D.3d 521, 976 N.Y.S.2d 662 [1st Dept. 2013];  Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999] ).  Defendants' allegation that plaintiffs' vehicle stopped suddenly in stop-and-go traffic is not a sufficient non-negligent explanation for the accident, and therefore fails to raise a triable issue of material fact in opposition (see e.g. Miller v. DeSouza, 165 A.D.3d 550, 550, 89 N.Y.S.3d 79 [1st Dept. 2018];  Bajrami, 147 A.D.3d at 649, 46 N.Y.S.3d 879;  Chowdhury, 118 A.D.3d at 488, 987 N.Y.S.2d 132;  Johnson, 261 A.D.2d at 271, 690 N.Y.S.2d 545).