Farrukh Suvonov, Plaintiff, v. SHERRY ANN ALI (2024)

Recitation in accordance with CPLR 2219 of the papers considered on the notice of motion, filed on December 11, 2023, under motion sequence two, by plaintiff Farrukh Suvonov seeking an order pursuant to CPLR 3212 granting summary judgment in plaintiff's favor on the issue of liability as against defendants Consolidated Bus Transit, Inc. and Sherry Ann Ali and striking the defendants' affirmative defenses of culpable conduct. Defendants have opposed the motion.

The Court has considered the following NYSCEF documents 19 through and including 37 in deciding the instant motion:

Notice of motion

Statement of material facts

Affirmation in support

Exhibits 1-3

Affirmation in opposition

Exhibits A-D

Memorandum of law in opposition

Response to Statement of material facts

Affirmation in reply

BACKGROUND

On July 25, 2023, plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).

On September 23, 2023, defendants Consolidated Bus Transit, Inc., and Sherry Ann Ali joined issue by interposing and filing a joint verified answer with the KCCO.

Plaintiff's verified complaint, bill of particulars, and affidavit in support of the motion allege the following salient facts. On Monday May 8, 2023, at approximately 3:00 P.M., plaintiff was driving his 2021 Toyota Rav4, bearing New York State license plate number KSF4781, southbound on Ocean Avenue at or near the address known as 1464 Ocean Avenue, Brooklyn, New York. Plaintiff's direction of travel had two lanes for moving traffic and parked cars on the rightmost side. Plaintiff was proceeding straight for approximately two minutes in heavy, stop and go traffic. At one point traffic ahead began to slow down and stop causing plaintiff to stop. While stopped for approximately 5-7 seconds, he was struck in the rear by a yellow school bus bearing New York State license plate 53247BB, operated by defendant Sherry Ann Li, and owned by Consolidated Bust Transit, Inc. The subject accident was caused by Sherry Ann Li's negligent operation of her vehicle. The accident caused the plaintiff to sustain serious physical injury.

LAW AND APPLICATION

"A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Bello v Masters Auto Collision of Long Is., Inc., 216 AD3d 726, 727 [2d Dept 2013]; see Vehicle and Traffic Law § 1129[a]). Thus, "[a] rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Edgerton v City of New York, 160 AD3d 809, 810 [2d Dept 2018]; see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]).

Here, the plaintiff established prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit  ¹ , which demonstrated that he was stopped for traffic condition ahead when he was struck in the rear by the defendants' vehicle (see Quintanilla v Mark, 210 AD3d 713, 714 [2d Dept 2022]; Mahmud v Feng Ouyang, 208 AD3d 861, 862 [2d Dept 2022]; Lopez v Dobbins, 164 AD3d 776, 777 [2d Dept 2018]). The plaintiff also established prima facie entitlement to judgment as a matter of law dismissing the defendants' affirmative defense alleging comparative negligence against the plaintiff by demonstrating that he was not at fault in the happening of the accident (see Quintanilla, 210 AD3d at 714; see Mahmud, 208 AD3d at 862).

In opposition to the plaintiff's prima facie showings, the defendants failed to raise a triable issue of fact. Contrary to the defendants' contention, the plaintiffs' motion was not premature. The defendants' proffered need to conduct depositions did not warrant denial of the plaintiff's motion, since the defendant driver already had personal knowledge of the relevant facts, and the defendants' mere hope or speculation that evidence might be uncovered was insufficient to deny the motion (see Quintanilla, 210 AD3d at 714—715).

CONCLUSION

The branch of the motion by plaintiff Farrukh Suvonov for an order pursuant to CPLR 3212 granting summary judgment in plaintiff's favor on the issue of liability against defendants Consolidated Bus Transit, Inc. and Sherry Ann Ali is granted.

The branch of the motion by plaintiff Farrukh Suvonov for an order striking the affirmative defense of culpable conduct asserted by defendants Consolidated Bus Transit, Inc. and Sherry Ann Ali against plaintiff is granted.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.

FOOTNOTES

1.   Plaintiff initially proffered his unsigned translated affidavit in English with a signed affidavit written in Turkish/Uzbek, and an affidavit by the translator stating his qualifications and that the translation was accurate (see CPLR 2101 [b]). The court granted the plaintiff an adjournment to sign the English version of his affidavit and file it with the KCCO. He did so.

Francois A. Rivera, J.