Pagan v Autobahn Serv. Ctr., Inc.

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Pagan v Autobahn Serv. Ctr., Inc. 2020 NY Slip Op 35379(U) January 24, 2020 Supreme Court, Bronx County Docket Number: Index No. 23702/2019E Judge: John R. Higgitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 23702/2019E FILED: BRONX COUNTY CLERK 01/30/2020 10:09 AM NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/30/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRO X: l.A.S. PART 14 ----------------------------------------------------------------------X EMILY PAGAN , Plaintiff - against - AUTOBAHN SERVICE S. WEBER DECISIO Index AND ORDER o. 23702/2019E ENTER, INC and MATTIAS Defendants. ----------------------------------------------------------------------X John R. Higgitt, J. pon plaintiffs September 28 , 2019 notice of motion and the affirmation and exhibits submitted in support thereof defendants' December I 0. 2019 affirmation in opposition · plaintiff' December 19, 2019 affirmation in reply· and due deliberation; plaintiff's motion for partial summary judgment on the issue of defendants ' liability and for dismissal of defendants· affirmative defense alleging plaintiffs culpable conduct is granted. This is a negligence action to recover damages for personal injuries plaintiff sustained in a motor ehicle accident that took place on May 25 2017. In support of her motion plaintiff submits the pleadings and her affida it. Plaintiff averred that at the time of the accident she was traveling in stop-and-go traffic on the Major Deegan Expressway hen she had to come to a stop due to traffic, and her vehicle was struck in the rear by defendants· ehicle. A rear-end collision with a tationary vehicle creates a prima facie case of negligence requiring judgment in favor of the stationary vehicle unless defendant proffers a non negligent explanation for the failure to maintain a safe distance ... A dr iver is expected to drive at a sufficiently safe speed and to maintain enough di tance between himself[or herself] and cars [* 1] 2 of 5 FILED: BRONX COUNTY CLERK 01/30/2020 10:09 AM NYSCEF DOC. NO. 22 INDEX NO. 23702/2019E RECEIVED NYSCEF: 01/30/2020 ahead of him [ or her] so as to avoid collisions with stopped vehicles taking into account weather and road condition ' (LaMasa, Bachman, 56 AD3d 340, 340 [1st Dept 2008]). A rear-end collision establishes a prima facie case of negligence against the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera, Rodriguez, 72 AD3d 553 [l st Dept 2010]). Vehicle and Traffic Law§ 1 l 29(a) states that a 'driver of a motor vehicle shall not follow another vehicle more closely than i reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway'· (see Darmento v Pac[fic Molasses Co. 81 Y2d 985 988 [ 1993 ]). Based on the plain language of the tatute a violation is clear when a driver follows anoth r too closely without adequate reason and that conduct results in a colli ion (id.). In opposition to plaintifrs prima facie howing of entitlement to judgment a a matter of law defendants failed to raise a triable issue of fact as to their liability. The affirmation of counsel alone is not sufficient to rebut plaintiff's prima facie showing of entitlement to ummary judgment. In addition, bald conclusory allegations, even if belie able, are not enough to withstand summary judgment ( ee Ehrlich v American Moninger Greenhou e Mfg Corp. , 26 Y2d 255 [1970]). Defendants argue that the motion should bed nied because plaintiff failed to submit evidence in admissible form , relying olely on a" elf- erving' affidavit. However, an affidavit submitted by an interested party i competent evidence and may be sufficient to discharge the interested party ' summary judgment burden (see Miller, ity of Nel1 York, 253 AD2d 394, 395 [1st Dept 1998]). Defendants further assert that the motion is premature because deposition have not been 2 [* 2] 3 of 5 FILED: BRONX COUNTY CLERK 01/30/2020 10:09 AM NYSCEF DOC. NO. 22 INDEX NO. 23702/2019E RECEIVED NYSCEF: 01/30/2020 completed. This motion however is not premature becau e "the information as to why the defendants ' vehicl e struck the rear end of plainti ff's car rea onably rests ithin defendant dri ver's own knowledge ' (Rodriguez v Garcia 154 AD3d 58 I. 581 [ I st Dept 20 17]" see Castaneda v DO & 0 New York Catering, Inc. , 144 AD3d 407 [1st Dept 20 16]). The mere hope that a patty mi ght be able to unco ver some evidence during the discovery process is insuffic ient to deny ununary judgment (see Castaneda supra; Avant v Cepin Lh ety orp . 74 AD3d 533 [1st Dept 20 10); Planned Bldg. Serv.·., Inc. , SL. Green Realty Corp .. 300 AD2d 89 [I st Dept 2002]). Defendant Weber did not provide an affida it in connection with this motion, and no reason was given for hi s fa ilure to do so. Because plaintiff made a prima facie ho wing of entitlement to judgment as a matter of law and defendants failed to raise a triable issue of fact as to their li ab ili ty, the aspect of plaintiffs motion for summary judgment as against defendants is granted. As to the aspect of plaintiff's motion seek ing di smissa l of defendants' first affirmati e defense alleging plaintiffs comparative fault , plaintiff made a prima fac i showi ng that she bears no such fa ult (. ee Soto-Maroquin v Melle!, 63 AD3d 449 [1 st Dept 2009)). Because defendants failed to raise a triable issue of fact, the aspect of plaintiff's motion seeking dismissal of defendants' first affirmative defense alleging plaintiff' comparati ve fa ult i granted . Accordingly it is ORDERED, that the aspect of plaintiff's motion fo r partial summary judgment on the issue of defendants' liability is granted; and it is further ORDERED that the aspect of plaintiff's motion eeking dismissal of defendants first affirmati ve defen e is granted and that defense is di smi ssed. 3 [* 3] 4 of 5 FILED: BRONX COUNTY CLERK 01/30/2020 10:09 AM NYSCEF DOC. NO. 22 INDEX NO. 23702/2019E RECEIVED NYSCEF: 01/30/2020 The parties are reminded of the February 28, 2020 compliance conference before the undersigned. This constitutes the decision and order of the court. Dated: January 24, 2020 4 [* 4] 5 of 5

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