Baran Aydin Atali, appellant, v. Adedeji A. Cole, et al., respondents, et al., defendants. (2026)

Argued—January 5, 2026

DECISION & ORDER

M/

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated October 2, 2024, and (2) an order of the same court dated May 21, 2025.  The order dated October 2, 2024, insofar as appealed from, granted that branch of the motion of the defendant Joseph Carmelo Rios which was for summary judgment dismissing the complaint insofar as asserted against him.  The order dated May 21, 2025, granted the motion of the defendants Adedeji A. Cole, Reginald B. Cole, and Virginia Amendares Mejia Cole for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order dated October 2, 2024, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated May 21, 2025, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

On August 1, 2020, the plaintiff allegedly was injured when a vehicle operated by the defendant Lothar M. Lopez Flores and owned by the defendant Alejandro Lopez Samaniego, in which the plaintiff was a passenger, collided with a vehicle operated by the defendant Adedeji A. Cole and owned by the defendants Reginald B. Cole and Virginia Amendares Mejia Cole (hereinafter collectively the Cole defendants) and then collided with a vehicle owned and operated by the defendant Joseph Carmelo Rios. In November 2020, the plaintiff commenced this action against the defendants to recover damages for personal injuries.  Rios moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him, and the Cole defendants moved for summary judgment dismissing the complaint insofar as asserted against them.  In an order dated October 2, 2024, the Supreme Court, among other things, granted that branch of Rios's motion, and in an order dated May 21, 2025, the court granted the Cole defendants' motion.  The plaintiff appeals.

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Wasilewska v. Long Is. Compost Corp., 234 AD3d 802, 803 [internal quotation marks omitted];  see Soto v. Colletta, 225 AD3d 819, 819–820).  “[A] driver is negligent if he or she makes an unsafe lane change (see Vehicle and Traffic Law § 1128[a] ), or fails to see that which, through the proper use of one's senses, should have been seen” (Laborde v Creative Closet & Design, Inc., 240 AD3d 678, 678 [internal quotation marks omitted];  see Fogel v. Rizzo, 91 AD3d 706, 707).  “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” (Laborde v Creative Closet & Design, Inc., 240 AD3d at 678 [internal quotation marks omitted];  see Vainer v. DiSalvo, 79 AD3d 1023, 1024).

Here, Rios established, prima facie, his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by submitting, inter alia, the deposition testimony of Rios, Adedeji, and the plaintiff.  Rios testified that he was driving in the middle lane, traveling straight at approximately 40 to 45 miles per hour, and that the road was clear ahead of him and on either side prior to the accident.  Rios further testified that he heard a loud crash behind him, and within a second or two, his vehicle was struck in the passenger side door by Flores's vehicle.  Accordingly, Rios established, prima facie, that he was not at fault in the happening of the accident (see Wasilewska v. Long Is. Compost Corp., 234 AD3d at 803;  Soto v. Colletta, 225 AD3d at 819–820).

The Cole defendants also established, prima facie, that they were not at fault in the happening of the accident.  Adedeji testified at his deposition that he was driving in the right lane, traveling straight, when Flores's vehicle veered into the right lane, in violation Vehicle and Traffic Law § 1128, bounced off the front tire of Adedeji's vehicle, and collided with Rios's vehicle (see Wasilewska v. Long Is. Compost Corp., 234 AD3d at 803;  Soto v. Colletta, 225 AD3d at 819–820).

In opposition, the plaintiff failed to raise a triable issue of fact with regard to Rios's motion or the Cole defendants' motion.  The plaintiff testified at his deposition that he did not observe the accident.  The plaintiff's submission of an uncertified police report failed to raise a triable issue of fact (see Yassin v. Blackman, 188 AD3d 62, 65).  The plaintiff's affidavit also failed to raise a triable issue of fact because the statement in his affidavit as to the cause of the accident directly contradicted his deposition testimony that he did not observe the accident.

Accordingly, the Supreme Court properly granted that branch of Rios's motion which was for summary judgment dismissing the complaint insofar as asserted against him and the Cole defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court