| McCoy v Zaman |
| 2009 NY Slip Op 07990 [67 AD3d 653] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Terrance McCoy, Respondent, v Qamar Zaman,Appellant. |
—[*1] Gary E. Rosenberg, P.C., Forest Hills, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated October 24, 2008, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The evidence in the record establishes that, on the afternoon of December 7, 2007 a motorvehicle operated by the plaintiff on Prospect Park West in Brooklyn was struck from behind by avehicle owned and operated by the defendant. After issue was joined in this matter, the plaintiffmoved for summary judgment on the issue of liability.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on the operatorof the moving vehicle to rebut the inference of negligence by providing a non-negligentexplanation for the collision (see Nievesv JHH Transp., LLC, 40 AD3d 1060 [2007]; Velazquez v Denton Limo, Inc., 7 AD3d 787, 788 [2004];Barberena v Budd Enters., 299 AD2d 305, 306 [2002]).
In opposition to the prima facie demonstration by the plaintiff of his entitlement to judgmentas a matter of law, the defendant failed to proffer sufficient evidence to raise a triable issue offact (see Nieves v JHH Transp., LLC, 40 AD3d at 1060; Rainford v Sung S. Han, 18 AD3d638, 639 [2005]). The defendant's affidavit submitted in opposition to the motion raisedonly feigned issues of fact intended solely to avoid the consequences of his prior admission(see Nieves v JHH Transp., LLC, 40 AD3d at 1060).
Contrary to the defendant's contention, summary judgment was not premature due to thealleged incompleteness of discovery (see Rivas v 525 Bldg. Co., 293 AD2d 733, 735[2002]). There was no indication that any outstanding discovery might reveal informationexclusively within the plaintiff's knowledge upon which his motion could successfully beopposed (see Household Bank [SB],N.A. v Mitchell, 12 AD3d 568, 568-569 [2004]; Rivas v 525 Bldg Co., 293AD2d at 735).[*2]
Accordingly, the Supreme Court properly granted theplaintiff's motion for summary judgment on the issue of liability. Skelos, J.P., Florio, Balkin andLeventhal, JJ., concur.