| Singh v Avis Rent A Car Sys., Inc. |
| 2014 NY Slip Op 05320 [119 AD3d 768] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Inderjit Singh, Respondent, v Avis Rent ACar System, Inc., et al., Appellants. |
Zaklukiewicz & Puzo, LLP, Islip Terrace, N.Y. (Daniel T. Podhaskie ofcounsel), for appellants.
Law Offices of Neil Kalra, P.C., Forest Hills, N.Y. (Nilay Shah of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from (1)an order of the Supreme Court, Queens County (Siegal, J.), entered December 17, 2012,which granted the plaintiff's motion for summary judgment on the issue of liability, and(2) an order of the same court entered August 8, 2013, which denied their motion forleave to renew and reargue their opposition to the plaintiff's motion for summaryjudgment on the issue of liability.
Ordered that the order entered December 17, 2012, is affirmed; and it is further,
Ordered that the appeal from so much of the order entered August 8, 2013, as deniedthat branch of the defendants' motion which was for leave to reargue is dismissed, as noappeal lies from an order denying reargument; and it is further,
Ordered that the order entered August 8, 2013, is affirmed insofar as reviewed; and itis further,
Ordered that one bill of costs is awarded to the plaintiff.
When the driver of an automobile approaches another automobile from the rear, heor she is bound to maintain a reasonably safe rate of speed and control over his or hervehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Taing v Drewery, 100AD3d 740 [2012]; Ortiz vHub Truck Rental Corp., 82 AD3d 725 [2011]; Nsiah-Ababio v Hunter, 78AD3d 672 [2010]; Power v Hupart, 260 AD2d 458 [1999]; see alsoVehicle and Traffic Law § 1129 [a]). Drivers have a duty to see whatshould be seen and to exercise reasonable care under the circumstances to avoid anaccident (see Maragos vSakurai, 92 AD3d 922, 923 [2012]; Balducci v Velasquez, 92 AD3d 626, 628 [2012];Filippazzo v Santiago, 277 AD2d 419 [2000]). "A rear-end collision with astopped or stopping vehicle creates a prima facie case of negligence against the operatorof the rear vehicle, thereby requiring that operator to rebut the inference of negligence byproviding a nonnegligent explanation for the collision" (Volpe v Limoncelli, 74 AD3d795, 795 [2010] [internal quotation marks omitted]; see Tutrani v County ofSuffolk, 10 NY3d 906, 908 [2008]; Martinez v Martinez, 93 AD3d 767, 768 [2012]; Giangrasso v Callahan, 87AD3d 521 [2011]; Parra vHughes, 79 AD3d 1113 [2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489,490 [2010]; Staton [*2]v Ilic, 69 AD3d 606 [2010]; Lampkin v Chan, 68 AD3d727 [2009]; Klopchin vMasri, 45 AD3d 737, 737 [2007]).
In support of the plaintiff's motion for summary judgment on the issue of liability,the plaintiff relied upon his affidavit. In his affidavit, the plaintiff claimed that, at thetime of the accident, he was stopped at a red light in the right lane of eastboundLaGuardia Road in Queens County. He further averred therein that he was stopped forapproximately 10 to 15 seconds in that lane when he was struck in the rear by thedefendants' bus. This evidence established the plaintiff's prima facie entitlement tojudgment as a matter of law on the issue of liability (see Williams v Spencer-Hall, 113 AD3d 759 [2014]; Sayyed v Murray, 109 AD3d464 [2013]; Prosen vMabella, 107 AD3d 870 Markesinis v Jaquez, 106 AD3d 961 [2013]; Cajas-Romero v Ward, 106AD3d 850 [2013]; Ramos vTC Paratransit, 96 AD3d 924, 926 [2012]; Napolitano v Galletta, 85 AD3d 881 [2011]; Kastritsios v Marcello, 84AD3d 1174 [2011]), which required the defendants to come forward with evidenceto rebut the inference of negligence by providing a nonnegligent explanation for therear-end collision. In opposition, the defendants did not come forward with suchevidence and, thus, failed to raise a triable issue of fact.
The defendants' contention that the plaintiff's motion should have been denied aspremature pursuant to CPLR 3212 (f) is unpersuasive. CPLR 3212 (f) provides, inrelevant part, that a court may deny a motion for summary judgment "[s]hould it appearfrom affidavits submitted in opposition to the motion that facts essential to justifyopposition may exist but cannot then be stated" (CPLR 3212 [f]; see Jones v American CommerceIns. Co., 92 AD3d 844 [2012]; James v Aircraft Serv. Intl. Group, 84 AD3d 1026, 1027[2011]; Juseinoski v New YorkHosp. Med. Ctr. of Queens, 29 AD3d 636, 637 [2006]). " 'This isespecially so where the opposing party has not had a reasonable opportunity fordisclosure prior to the making of the motion' " (James v Aircraft Serv. Intl.Group, 84 AD3d at 1027, quoting Baron v Incorporated Vil. of Freeport, 143AD2d 792, 793 [1988]; see Jones v American Commerce Ins. Co., 92 AD3d at845; Bank of Am., N.A. vHillside Cycles, Inc., 89 AD3d 653 [2011]; Dietrich v Grandsire, 83 AD3d 994 [2011]). A party whocontends that a summary judgment motion is premature is required to demonstrate thatdiscovery might lead to relevant evidence or that the facts essential to justify oppositionto the motion were exclusively within the knowledge and control of the movant(see CPLR 3212 [f]; Boorstein v 1261 48th St. Condominium, 96 AD3d 703[2012]; Dietrich vGrandsire, 83 AD3d 994 [2011]; Trombetta v Cathone, 59 AD3d 526 [2009]). "The merehope 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., 34AD3d 759, 760 [2006]). Here, the defendants did not satisfy their burden ofdemonstrating that the plaintiff's motion for summary judgment was premature (seeWilliams v Spencer-Hall, 113 AD3d at 760). Accordingly, the Supreme Courtproperly granted the plaintiff's motion for summary judgment on the issue ofliability.
Contrary to the defendants' contention, the Supreme Court providently exercised itsdiscretion in denying that branch of their motion which sought leave to renew theiropposition to the plaintiff's motion for summary judgment on the issue of liability. "Amotion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d454, 454-455 [2005]; seeOkumus v Living Room Steak House, Inc., 112 AD3d 799 [2013]). Pursuant toCPLR 2221, a motion for leave to renew "shall be based upon new facts not offered onthe prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and"shall contain reasonable justification for the failure to present such facts on the priormotion" (CPLR 2221 [e] [3]; see Okumus v Living Room Steak House, Inc., 112AD3d at 799; Bank of N.Y.Mellon v Izmirligil, 88 AD3d 930, 932 [2011]; Worrell v Parkway Estates,LLC, 43 AD3d 436, 437 [2007]). "A motion for leave to renew is not a secondchance freely given to parties who have not exercised due diligence in making their firstfactual presentation" (Worrell v Parkway Estates, LLC, 43 AD3d at 437; seeOkumus v Living Room Steak House, Inc., 112 AD3d at 799; Sobin v Tylutki, 59 AD3d701, 702 [2009]; Renna vGullo, 19 AD3d 472, 473 [2005]). The Supreme Court correctly determined thatthe defendants, in support of that branch of their motion which was for leave to renew,did not set forth a reasonable justification for failing to submit the affidavit of thedefendant Ozie Jackson, the driver of the defendants' bus at the time of the accident, inopposition to the plaintiff's prior motion (see Forssell v Lerner, 101 AD3d 807 [2012]; Sajid v Glenwood Holding,LLC, 68 AD3d 745 [2009]; Ramirez v Khan, 60 AD3d 748, 748 [2009]). Therefore, theSupreme Court providently exercised its discretion in denying that branch of thedefendants' motion which sought leave to renew their opposition to the plaintiff's motionfor summary judgment on the [*3]issue of liability. Hall,J.P., Roman, Duffy and LaSalle, JJ., concur.