| Cortes v Whelan |
| 2011 NY Slip Op 03018 [83 AD3d 763] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Michael Cortes, Respondent, v George P. Whelan,Appellant. |
—[*1] Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Mayer, J.), dated September 17, 2010, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when the defendant's motor vehicle collided with the rearof the plaintiff's stopped motor vehicle. After joinder of issue, but before any discovery wasconducted, the plaintiff moved for summary judgment on the issue of liability.
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 non-negligent explanation for the collision (see Ramirez v Konstanzer, 61 AD3d837 [2009]; Hakakian vMcCabe, 38 AD3d 493 [2007]; Girolamo v Liberty Lines Tr., 284 AD2d 371[2001]). If the operator of the moving vehicle cannot come forward with evidence to rebut theinference of negligence, the operator of the stopped vehicle is entitled to summary judgment onthe issue of liability (see Staton vIlic, 69 AD3d 606 [2010]; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2007]; Piltser v Donna Lee Mgt. Corp., 29AD3d 973 [2006]).
The plaintiff established his prima facie entitlement to judgment as a matter of law bysubmitting his affidavit, in which he alleged that he was stopped behind another stopped vehicleat the intersection of Pine Aire Drive and Thompson Avenue in Bay Shore "when suddenly, andwithout warning, [his] vehicle was struck from behind . . . by" the defendant'svehicle (see Hauser v Adamov, 74AD3d 1024 [2010]).
In opposition, the defendant failed to rebut the inference of negligence by providing anonnegligent explanation for the collision. The defendant's allegation that he did not recall seeingbrake lights or any other illumination on the plaintiff's vehicle before the collision did notadequately rebut the inference of negligence (see Macauley v ELRAC, Inc., 6 AD3d 584, 585 [2004]; Gross vMarc, [*2]2 AD3d 681 [2003]; Waters v City of NewYork, 278 AD2d 408, 409 [2000]; Barile v Lazzarini, 222 AD2d 635 [1995]).Similarly, the defendant's statement that, upon turning left off the exit ramp he "almostimmediately came into contact with the rear of the vehicle . . . operated by theplaintiff," does not rebut the inference of negligence. Indeed, the statement indicates that thedefendant failed to control his vehicle and to see that which, under the circumstances, he shouldhave seen by the proper use of his senses (see generally Canfield v Beach, 305 AD2d 440[2003]; Santanastasio v Doe, 301 AD2d 511 [2003]; Bournazos v Malfitano, 275AD2d 437 [2000]; Demenagas v Yan Hok Lai, 275 AD2d 759 [2000]; Marsella vSound Distrib. Corp., 248 AD2d 683, 684 [1998]).
The defendant's contention that the plaintiff's motion was premature is without merit. A partywho contends that a summary judgment motion is premature is required to demonstrate thatdiscovery might lead to relevant evidence (see Trombetta v Cathone, 59 AD3d 526 [2009]). The defendant'scontention that only the plaintiff has knowledge of what occurred between the plaintiff's vehicleand the leading vehicle, which was owned and operated by one or more nonparties, fails toestablish what information the defendant hopes to discover that would relieve him of liability."The mere hope or speculation that evidence sufficient to defeat a motion for summary judgmentmay be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d759, 760 [2006]).
The defendant's remaining contentions are without merit. Covello, J.P., Hall, Lott and Cohen,JJ., concur.