McCarthy v Art Van Lines USA Inc.

McCarthy v Art Van Lines USA Inc. 2016 NY Slip Op 07579 Decided on November 15, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2016
Renwick, J.P., Moskowitz, Kapnick, Kahn, Gesmer, JJ.
2173 452594/15

[*1]Kenneth J. McCarthy, Plaintiff-Appellant,

v

Art Van Lines USA Inc., et al., Defendants-Respondents.

Greenstein & Milbauer, LLP, New York (Frank Trief of counsel), for appellant.

Goldberg Segalla LLP, Garden City (Robert W. Berbenich of counsel), for respondents.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about March 21, 2016, which denied plaintiff's motion for partial summary judgment on the issue of liability and dismissing the third, fourth, fourteenth and fifteenth affirmative defenses, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established entitlement to judgment as a matter of law on the issue of liability. He submitted an affidavit in which he stated that he was slowing down in heavy traffic when his vehicle was hit in the rear by defendants' vehicle (see e.g. Brown v Smalls, 104 AD3d 459 [1st Dept 2013]; Rosario v Vasquez, 93 AD3d 509 [1st Dept 2012]). Plaintiff also submitted a certified copy of the police accident report, which was consistent with plaintiff's sworn statement (see Santana v Danco Inc., 115 AD3d 560 [1st Dept 2014]).

In opposition, defendants failed to provide a nonnegligent explanation for the accident. Their speculation that plaintiff may have been comparatively negligent, by stopping suddenly, does not raise a triable issue of fact (see Chowdhury v Matos, 118 AD3d 488 [1st Dept 2014]). Nor does defendants' speculation that discovery might disclose some basis for a defense render the grant of summary judgment on the issue of liability premature (see Santana v Danco Inc., 115 AD3d at 560; Soto—Maroquin v Mellet, 63 AD3d 449 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2016

DEPUTY CLERK