| Sehgal v www.nyairportsbus.com, Inc. |
| 2012 NY Slip Op 07980 [100 AD3d 860] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Anil Sehgal et al., Appellants, v www.nyairportsbus.com,Inc., et al., Respondents. |
—[*1] Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Lane, J.), dated August 10, 2011, which denied, aspremature, their motion for summary judgment on the issue of liability, with leave to renew afterthe completion of discovery.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion forsummary judgment on the issue of liability is granted.
This action arose as a result of a motor vehicle collision on August 7, 2010, at theintersection of Fifth Avenue and West 57th Street in Manhattan. The plaintiffs averred that theywere traveling at a rate of five miles per hour in an eastbound lane of West 57th Street, when, asthey were preparing to stop at a red light, their vehicle was struck from behind by the defendants'vehicle. The defendants admitted, in their answer, that their vehicle struck the plaintiffs' vehicle.Before discovery was conducted, the plaintiffs moved for summary judgment on the issue ofliability, and they submitted, inter alia, an affidavit from each plaintiff as to the facts surroundingthe collision. In opposition, the defendants submitted only an attorney affirmation, in which theyasserted, among other things, that the motion was premature. The Supreme Court denied themotion as premature, with leave to renew after the completion of discovery, and the plaintiffsappeal.
" 'A driver of a vehicle approaching another vehicle from the rear is required to maintain areasonably safe distance and rate of speed under the prevailing conditions to avoid colliding withthe other vehicle' " (Napolitano vGalletta, 85 AD3d 881, 882 [2011], quoting Nsiah-Ababio v Hunter, 78 AD3d 672, 672 [2010]; seeVehicle and Traffic Law § 1129 [a]). Accordingly, " '[a]s a general rule, a rear-endcollision with a stopped or stopping vehicle creates a prima facie case of negligence with respectto the operator of the rearmost vehicle, imposing a duty of explanation on that operator to excusethe collision either through a mechanical failure, a sudden stop of the vehicle ahead, anunavoidable skidding on a wet pavement, or any other reasonable cause' " (Abbott v Picture Cars E., Inc., 78AD3d 869, 869 [2010], quoting DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490[2010]; see [*2]Tutrani v County of Suffolk, 64 AD3d 53, 59 [2009]).
Here, the plaintiffs' affidavits established their prima facie entitlement to judgment as amatter of law (see Hanakis vDeCarlo, 98 AD3d 1082, 1084 [2012]; Napolitano v Galletta, 85 AD3d at 882).In opposition, the defendants failed to raise a triable issue of fact (see Hanakis v DeCarlo,98 AD3d at 1084; Perez v Brux Cab Corp., 251 AD2d 157, 159 [1998]). They likewisefailed to demonstrate that the motion was premature. A litigant seeking to avoid summaryjudgment on the ground that discovery has not been conducted must provide an evidentiary basisdemonstrating that discovery may lead to relevant evidence or that the facts essential to opposingthe motion are in the movant's exclusive knowledge and control (see Medina v Rodriguez, 92 AD3d850, 851 [2012]; Hill v Ackall,71 AD3d 829, 830 [2010]). The defendants made no such showing. Accordingly, theSupreme Court should have granted the plaintiffs' motion for summary judgment on the issue ofliability.
In light of our determination that the plaintiffs' affidavits were sufficient to meet their primafacie burden, we need not address the defendants' remaining contention. Angiolillo, J.P., Balkin,Lott and Roman, JJ., concur.