The following numbered papers were read on this motion:

Upon the foregoing papers, the Court having elected to determine the within motion on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) ("All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.)," and due deliberation having been had thereon, it is determined as follows:

In this action to recover damages for personal injuries, Plaintiffs Keyanna Richards and Tandika Haynes move for an order pursuant to CPLR § 3212 granting summary judgment on the issue of liability against Defendants Julio Pierre and Skylark Trans Limited Liability Company, dismissing Defendants' affirmative defenses of Plaintiffs' comparable fault, and for such other and further relief as this Court deems just, proper, and equitable. Defendants opposed the motion and served a cross-motion seeking dismissal of the complaint due to Plaintiffs allegedly having violated court orders and failed to attend IMEs. For the reasons set forth below, Plaintiffs' motion is granted.

This action arises out of a rear-end collision that occurred on June 2, 2021, at or near 20 Flatbush Avenue near the intersection with Nevins Street, in Kings County, New York. Plaintiffs claim that they were passengers in a vehicle operated by non-party Shevon Alexander, the mother of Plaintiff Keyanna Richards. Plaintiffs claim that Defendant Julio Pierre, while operating a vehicle owned by Skylark Trans Limited Liability Company struck the vehicle in [*2]which they were passengers in the rear. They claim further that Defendant Julio Pierre failed to avoid contact with the vehicle in which Plaintiffs were passengers; that said Defendant is unable to provide a non-negligent rebuttal to the presumption of negligence on his part.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

A rear-end collision with a forward vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Bruce v Takahata, 219 AD3d 448 [2d Dept 2023]; Perez v Persad, 183 AD3d 771 [2d Dept 2020]; Billis v Tunjian, 120 AD3d 1168 [2d Dept 2014]; Itingen v Weinstein, 260 AD2d 440 [2d Dept 1999]). A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Bruce v Takahata, 219 AD3d 448; Billis v Tunjian, 120 AD3d 1168; Macauley v Elrac, Inc., 6 AD3d 584 [2d Dept 2004]).

Furthermore, the right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence (see Rodriguez v City of New York, 31 NY3d 312 [2018]. Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiffs moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Balladares v City of New York, 177 AD3d 942 (2d Dept 2019). The right of the plaintiffs, as innocent passengers, to summary judgment is not restricted by potential issues of comparative negligence which may exist as between the defendant driver and the driver of the host vehicle (see id.; Jung v Glover, 169 AD3d 782 [2d Dept 2019]; Medina v Rodriguez, 92 AD3d 850 [2d Dept 2012]).

Here, Plaintiffs established prima facie entitlement to judgment as a matter of law through the affidavits of non-party driver Shevon Alexander and Plaintiff Keyanna Richards. The former swore as follows:

1. That I was the operator of a 2013 Mercedes vehicle in which plaintiffs Keyanna Richards and Tandika Haynes were passengers at the time of the subject accident.

2. On June 2, 2021, at approximately 7:15 p.m., I was involved in a rear end motor vehicle accident, which occurred at or near 20 Flatbush Avenue near the intersection of [*3]Nevins Street, in Kings County, City and State of New York.

3. At the above-referenced time and location, I was operating a 2013 Mercedes bearing the New York State license plate number KKX2294 with plaintiff Keyanna Richards sitting in the front passenger seat and plaintiff Tahdika Haynes sitting in the rear left passenger seat, when without any warning we were struck in the rear by a 2017 Ford bearing the New Jersey license plate number OT973E, owned by defendant Skylark Trans LLC and operated by defendant Julio Pierre.

4. Prior to the impact, we were traveling Southbound in the center moving lane on Flatbush Avenue for approximately 10 minutes. At the accident location, Flatbush Avenue is a two-way roadway with three lanes for moving traffic in each direction. As we traveled on the Southbound side of Flatbush Avenue, traffic was heavy but moving at a slow pace. My highest rate of speed on Flatbush venue was approximately 15 mph.

5. As we proceeded in the center lane on Flatbush Avenue, I felt a hard impact to the rear of my vehicle pushing me about 3-4 feet forward.

6. At the moment of impact, my vehicle was moving at approximately 10-15 mph. My foot was on the gas.

7. At the time of the impact, my vehicle's tail lights and brake lights were properly functioning.

8. On the date and at the time of the collision, the weather was clear and the roads were dry.

9. I was not eating, drinking or using my cell phone at the time of the accident. I did not have headphones or anything on my head. There were no obstructions or roadwork at the location of the accident.

10. I am not responsible for and in no way could have avoided the instant collision.

11. The 4 photographs attached to this Affidavit fairly and accurately depict the damage to both vehicles.

(NYSCEF Doc No. 19 ¶¶ 1-11.) Plaintiff Keyanna Richards swore practically identically to the facts related by non-party driver Shevon Alexander (see NYSCEF Doc No. 18). The photographs submitted by Plaintiffs show that the vehicle they were passengers in was smashed in the rear and that the front of the vehicle opared by Defendant Julio Pierre had front-end damage (see NYSCEF Doc No. at 3-6).

In opposition, Defendants have failed to submit proof sufficient to rebut the inference of negligence, and therefore have failed to set forth a non-negligent explanation for the rear-end collision. No affidavit from driver Defendant Julio Pierre was submitted in opposition. The affirmation of the defendants' attorney alone is insufficient to raise a triable issue of fact (see Browne v Castillo, 288 AD2d 415 [2d Dept 2001]). Defendants have not presented any evidence contradicting that of Plaintiffs.

Defendants' counsel maintains that there are depositions to be conducted (see NYSCEF Doc No. 26 ¶ 41), yet stated that Plaintiffs appeared for depositions in June and July 2023 (see id. ¶¶ 9, 12). Defendants also argue that they "have not yet been afforded the opportunity to depose Ms. Alexander as a witness" (NYSCEF Doc No. 26 ¶ 43). "[P]laintiffs' motion is premature," claim Defendants (id. ¶ 4).

Defendants argue that neither of the Plaintiffs submitted any supporting affidavit as part of their motion and rely solely on the self-serving statements of Ms. Alexander (see id.). Actually, Plaintiff Keyanna Richards did submit an affidavit (see NYSCEF Doc No. 18) in [*4]addition to that of non-party Shevon Alexander (see NYSCEF Doc No. 19).

Defendants further argue that since Plaintiff Keyanna Richards failed to attend scheduled IMEs, in violation of the June 26 Compliance Conference order, summary judgment on liability (Defendants' and lack of it on the part of Plaintiffs) should be denied (see NYSCEF Doc No. 26 ¶¶ 2, 10, 16-30). They cross-move to dismiss the complaint for the same reasons.

It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (see Whitnum v Plastic and Reconstructive Surgery, P.C., 142 AD3d 495 [2d Dept 2016]). "[I]n the absence of a showing that additional evidence would assist in raising a factual issue, we reject the contention that defendants' motion should have been denied because they failed to comply with Supreme Court's discovery order" (Salty v Altamont Assoc., 198 AD2d 591 [2d Dept 1993]). Here, while IMEs might provide information to Defendants as to the physical condition of Plaintiffs, nothing gleaned from them would impact a determination on the issue of liability. Therefore, for purposes of determining Plaintiffs' motion seeking summary judgment on liability and dismissal of affirmative defenses sounding in comparative negligence, their present medical condition is irrelevant. Failure to attend IMEs would be relevant to the issue of damages—not to liability.

As for a deposition of non-party Shevon Alexander, Defendants have not made any showing that they sought one. Considering that Plaintiff Keyanna Richards submitted an affidavit making out a prima facie case of liability on the part of Defendant operator Julio Pierre the affidavit of non-party Shevon Alexander is surplusage and not necessary for Plaintiffs to establish entitlement to summary judgment on the issue of liability. It is irrelevant that non-party Shevon Alexander was not deposed (see Miller v Metropolitan 810 7th Ave., 50 AD3d 474 [1st Dept 2008]; cf. Frybergh v Kouffman, 119 AD2d 541 [2d Dept 1986]). Defendants conceded that Plaintiff Keyanna Richards was deposed and Defendants did not submit anything from her deposition that might have rebutted her affidavit's contents or provided Defendant Julio Pierre with a non-negligent explanation for him striking the vehicle in which Plaintiffs were passengers. Defendants have failed to establish that further discovery from Plaintiffs might lead to information creating a material issue of fact with respect to their liability or culpable conduct on the part of Plaintiffs (see Skura v Wojtlowski, 165 AD3d 1196 [2d Dept 2018]).

Plaintiffs have not only established that there are no material issues of fact as to Defendant Julio Pierre's liability, they, as innocent passengers, established their freedom from any alleged culpable conduct with respect to causation of the accident. As a matter of law Plaintiffs are entitled to summary judgment.

Accordingly, it is hereby

ORDERED, that Plaintiffs' motion for summary judgment on the issue of liability against Defendants Julio Pierre and Skylark Trans Limited Liability Company is GRANTED; Defendants' affirmative defenses sounding in comparative negligence, contributory negligence, and culpable conduct on the part of Plaintiffs are stricken from Defendants' answer. Any issues as to Plaintiffs' failure to attend IMEs and the consequences they have on a trial with respect to damages shall be respectfully referred to the Centralized Compliance Part for determination.

This constitutes the decision and order of the Court.