KIMYAGAROV v. NIXON TAXI CORP (2007)

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), dated May 29, 2007, as denied that branch of their motion which was for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was for summary judgment on the issue of liability is granted.

 A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Carhuayano v. J & R Hacking, 28 A.D.3d 413, 414, 813 N.Y.S.2d 162;  Milskiy v. Solanky, 8 A.D.3d 353, 777 N.Y.S.2d 734;  Gaeta v. Carter, 6 A.D.3d 576, 775 N.Y.S.2d 86).   If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Piltser v. Donna Lee Mgt. Corp., 29 A.D.3d 973, 816 N.Y.S.2d 543;  Dileo v. Greenstein, 281 A.D.2d 586, 722 N.Y.S.2d 259;  Leonard v. City of New York, 273 A.D.2d 205, 206, 708 N.Y.S.2d 467).

 Here, the plaintiffs met their burden of establishing their prima facie entitlement to judgment on the issue of liability by submitting the affidavit of the plaintiff Arkadiy Kimyagarov in which he stated that the vehicle he was operating was stopped at a stop sign when it was struck in the rear by the defendants' vehicle (see Comiskey v. Pisano, 10 A.D.3d 441, 442, 781 N.Y.S.2d 157;  Dickie v. Pei Xiang Shi, 304 A.D.2d 786, 787, 759 N.Y.S.2d 141;  Girolamo v. Liberty Lines Tr., 284 A.D.2d 371, 372, 726 N.Y.S.2d 132).   In opposition, the defendants failed to submit an affidavit from a person with personal knowledge of the facts either denying the plaintiffs' allegations or offering a nonnegligent explanation for the collision (see Fenko v. Mealing, 43 A.D.3d 856, 841 N.Y.S.2d 378;  Piltser v. Donna Lee Mgt. Corp., 29 A.D.3d at 974, 816 N.Y.S.2d 543;  Arbizu v. REM Transp., Inc., 20 A.D.3d 375, 376, 799 N.Y.S.2d 231).

 Furthermore, contrary to the defendants' contention, the motion was not premature, as they failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiffs (see CPLR 3212[f];  Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516;  Pina v. Merolla, 34 A.D.3d 663, 664, 824 N.Y.S.2d 411;  Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183;  Ruttura & Sons Constr. Co. v. Petrocelli Constr., 257 A.D.2d 614, 615, 684 N.Y.S.2d 286).   The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion (see Arbizu v. REM Transp., Inc., 20 A.D.3d at 376, 799 N.Y.S.2d 231;  Kershis v. City of New York, 303 A.D.2d 643, 756 N.Y.S.2d 786;  Associates Commercial Corp. v. Nationwide Mut. Ins. Co., 298 A.D.2d 537, 539, 748 N.Y.S.2d 792).   Accordingly, the plaintiffs were entitled to summary judgment on the issue of liability.