KELLEY v. VERIZON SERVICES CORP (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated May 9, 2024.  The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence, assumption of risk, and failure to wear a seatbelt.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence, assumption of risk, and failure to wear a seatbelt is granted.

The plaintiff commenced this action against the defendants to recover damages for personal injuries that he allegedly sustained when the vehicle he was operating was struck in the rear by a vehicle owned by the defendants.  Prior to the completion of discovery, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence, assumption of risk, and failure to wear a seatbelt.  In an order dated May 9, 2024, the Supreme Court denied the motion.  The plaintiff appeals.

“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” (Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659;  see Vehicle and Traffic Law § 1129[a];  Jimenez–Pantaleon v. Aucancela, 221 A.D.3d 676, 197 N.Y.S.3d 601).  “Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” (Montalvo v. Cedeno, 170 A.D.3d 1166, 1167, 96 N.Y.S.3d 638).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit wherein he averred that his vehicle was stopped at a red traffic light when it was struck in the rear by the defendants’ vehicle (see Maurice v. Donovan, 235 A.D.3d 633, 634, 227 N.Y.S.3d 216;  Martin v. Copado–Esquivel, 226 A.D.3d 668, 670, 209 N.Y.S.3d 83;  Montalvo v. Cedeno, 170 A.D.3d at 1167, 96 N.Y.S.3d 638).  The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging comparative negligence by demonstrating that he was not at fault in the happening of the accident (see Martin v. Copado–Esquivel, 226 A.D.3d at 670, 209 N.Y.S.3d 83).  The plaintiff established his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging failure to wear a seatbelt by presenting evidentiary proof in admissible form that he was wearing a seatbelt during the accident (see Maurice v. Donovan, 235 A.D.3d at 635, 227 N.Y.S.3d 216).  In addition, the plaintiff established his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging assumption of risk, as this doctrine does not apply to this case (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88–90, 957 N.Y.S.2d 268, 980 N.E.2d 933;  Brewster v. Riseboro Community Partnership, Inc., 234 A.D.3d 810, 812, 225 N.Y.S.3d 362).

In opposition, the defendants “ ‘failed to submit an affidavit from a person with personal knowledge of the facts either denying the plaintiff[’s] allegations or offering a nonnegligent explanation for the collision’ ” (Maurice v. Donovan, 235 A.D.3d at 635, 227 N.Y.S.3d 216, quoting Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 737, 846 N.Y.S.2d 309;  see Sapienza v. Harrison, 191 A.D.3d 1028, 1030, 142 N.Y.S.3d 584).  The attorney affirmation submitted in opposition to the plaintiff's motion was insufficient to raise a triable issue of fact (see Kishun v. Roman, 221 A.D.3d 795, 797, 198 N.Y.S.3d 209;  Giwa v. Bloom, 154 A.D.3d 921, 923, 62 N.Y.S.3d 527).

Contrary to the defendants’ contention, the plaintiff's motion was not premature, as the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f];  Maurice v. Donovan, 235 A.D.3d at 635, 227 N.Y.S.3d 216;  Kishun v. Roman, 221 A.D.3d at 797, 198 N.Y.S.3d 209;  Pierre v. Demoura, 148 A.D.3d 736, 737, 48 N.Y.S.3d 260).

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence, assumption of risk, and failure to wear a seatbelt.

GENOVESI, J.P., FORD, LOVE and GOLIA, JJ., concur.