| Kimyagarov v Nixon Taxi Corp. |
| 2007 NY Slip Op 09208 [45 AD3d 736] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Arkadiy Kimyagarov et al., Appellants, v Nixon Taxi Corp.et al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Craig T. Ellman ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), dated May 29,2007, as denied that branch of their motion which was for summary judgment on the issue ofliability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiffs' motion which was for summary judgment on the issue of liability isgranted.
A rear-end collision with a stopped vehicle creates a prima facie case of negligence againstthe operator of the moving vehicle, thereby requiring that operator to rebut the inference ofnegligence by providing a nonnegligent explanation for the collision (see Carhuayano v J&R Hacking, 28AD3d 413, 414 [2006]; Milskiy vSolanky, 8 AD3d 353 [2004]; Gaeta v Carter, 6 AD3d 576 [2004]). If the operator of the movingvehicle cannot come forward with evidence to rebut the inference of negligence, the occupantsand owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Piltser v Donna Lee Mgt. Corp., 29AD3d 973 [2006]; Dileo v Greenstein, 281 AD2d 586 [2001]; Leonard v City ofNew York, 273 AD2d 205, 206 [2000]).[*2]
Here, the plaintiffs met their burden of establishing theirprima facie entitlement to judgment on the issue of liability by submitting the affidavit of theplaintiff Arkadiy Kimyagarov in which he stated that the vehicle he was operating was stopped ata stop sign when it was struck in the rear by the defendants' vehicle (see Comiskey v Pisano, 10 AD3d441, 442 [2004]; Dickie v Pei Xiang Shi, 304 AD2d 786, 787 [2003]; Girolamov Liberty Lines Tr., 284 AD2d 371, 372 [2001]). In opposition, the defendants failed tosubmit an affidavit from a person with personal knowledge of the facts either denying theplaintiffs' allegations or offering a nonnegligent explanation for the collision (see Fenko v Mealing, 43 AD3d856 [2007]; Piltser v Donna Lee Mgt. Corp., 29 AD3d at 974; Arbizu v REM Transp., Inc., 20 AD3d375, 376 [2005]).
Furthermore, contrary to the defendants' contention, the motion was not premature, as theyfailed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or thatfacts essential to opposing the motion were exclusively within the knowledge and control of theplaintiffs (see CPLR 3212 [f]; Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]; Pina v Merolla, 34 AD3d 663, 664[2006]; Juseinoski v New York Hosp.Med. Ctr. of Queens, 29 AD3d 636, 637 [2006]; Ruttura & Sons Constr. Co. vPetrocelli Constr., 257 AD2d 614, 615 [1999]). The mere hope or speculation that evidencesufficient to defeat a motion for summary judgment may be uncovered during the discoveryprocess is an insufficient basis for denying the motion (see Arbizu v REM Transp., Inc.,20 AD3d at 376; Kershis v City of New York, 303 AD2d 643 [2003]; AssociatesCommercial Corp. v Nationwide Mut. Ins. Co., 298 AD2d 537, 539 [2002]). Accordingly,the plaintiffs were entitled to summary judgment on the issue of liability. Rivera, J.P., Krausman,Florio, Carni and Balkin, JJ., concur.