Struck In The Rear While At A Red Light
The plaintiff, originally from Dutchess County, was stopped in her motor vehicle at a red light when she was struck in the rear by the defendants’ vehicle exiting a mall. The court granted summary judgment since the defendants failed to offer a non-negligent explanation for the accident or prove they will discover evidence which raises a triable issue.
PATRICIA SHOST V. DONALD J. DUNCAN AND GENERAL MOTORS LLC.
Supreme Court, County of Dutchess, Index no: 52275/2016
Plaintiff’s affidavit establishes· that she was driving her vehicle westbound on Grasslands Road and came to a stop at a red light at the intersection with Bradhurst Avenue. She further avers that she was stopped for approximately five (5) seconds and then, without any warning, her vehicle was struck twice from behind by the vehicle driven by Defendant Duncan. The impacts to her vehicle caused her vehicle to be pushed forward, almost striking the vehicle in front of her. The police report confirms that Plaintiff’s vehicle was rear-ended by Defendant Duncan.
In opposition to the motion, Defendants submitted an attorney affirmation and exhibits relating to outstanding discovery. Noticeably absent from the submission is an affidavit from Defendant Duncan, a person with personal knowledge of the facts, either denying the plaintiff’s allegations or offering a nonnegligent explanation for the collision. Kimyagarov v. Nixon Taxi Corp., AD3d 736, 737 [2nd Dept 2007].
Defendants’ entire opposition revolves around Plaintiff’s alleged failure to timely provide medical authorizations and appear for a deposition. However, Defendants completely fail to establish how that discovery might lead to relevant evidence on the issue of liability or the facts essential to justify opposition to the motion are exclusively within the knowledge and control of the Plaintiff. Deleg, supra. “[I]n opposing plaintiff’s motion, [Defendants] failed to tender an affidavit or affidavits averring the existence, in admissible form, of proof which would present a triable issue of fact or, if hearsay, an acceptable excuse for the failure to present firsthand knowledge” Chem. Bank v. PIC Motors Corp., 58 NY2d 1023, 1026 ; Deleg v. Vinci, supra at 1146. An attorney affirmation claiming, without specifying, that discovery would permit them to “discover relevant facts that might support their opposition” is not enough. See Koster Affirmation at ¶ 21.
As Defendants have not denied the Plaintiff’s allegations or offered a nonnegligent explanation for the collision (see Kimyagarov, supra), nor shown that they are likely to discover evidence which raises a triable issue of fact, Plaintiff is entitled to summary judgment on the issue of liability.