Preview
FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018
SUPREME COURT OF THE STATE OF NEW YORK Index No.:150266/2017
COUNTY OF NEW YORK
---------------------------- ------- -----X ATTORNEY'S
JOHN H. GUTIERREZ, AFFIRMATION
Plaintiff,
-against-
FREDERICK V. TRAPP, GOJART AGOLI and NERTILA
GUZE,
Defendants.
---------- -------------------------------------X
Olga Siamionava-Muzio, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true, under the penalties of perjury:
1. I am an associate in the firm of SCHWARTZAPFEL LAWYERS P.C., attorneys
for the Plaintiff herein and, as such, am fully familiar with the facts and circumstances herein.
2. This Affinnation is submitted in support of the instant motion seeking an Order
pursuant to CPLR §3212, granting Plaintiff Summary Judgment on the issue of liability and
setting this matter down for an immediate trial on damages.
3. This case involves a four (4) car chain reaction collision that occurred on April
28, 2016, for which defendant FREDERICK V. TRAPP ("TRAPP") is entirely at fault. On this
date, Mr. Gutierrez was stopped in traffic on Verrazano Bridge. The collision was initiated by
defendant TRAPP whose vehicle initially rear-ended the vehicle owned by defendant
NERTILA GUZE ("GUZE") and operated by defendant GOJART AGOLI ("AGOLI")
propelling it forward into Mr. Gutierrez's vehicle situated directly in front it. Due to the force
of the impact, Mr. Gutierrez's vehicle was also propelled forward and struck another vehicle
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that was stopped in front of Mr. Gutierrez in the same lane.
4. The instant motion should be granted because, as outlined below, plaintiff has
established a prima facie entitlement to a summary judgment on the issue of liability, defendant
TRAPP is unable to rebut the presumption of negligence under the circumstances of this case,
and no issues of fact exist as to the defendant TRAPP's liability.
FACTUAL OVERVIEW AND PROCEDURAL HISTORY
5. This is an action for serious personal injuries sustained by Mr. Gutierrez arising
from an automobile collision that occurred on April 28, 2016, at approximately 6:30 am on the
Verrazano Bridge, lower level. On this date at this location, there was a four-car collision and
Mr. Gutierrez's vehicle was located as the second vehicle in line out of the four (4) cars
involved. Mr. Gutierrez's vehicle was struck in the rear by the vehicle operated by defendant
AGOLI after defendant TRAPP rear-ended defendant AGOLI's vehicle pushing itinto the rear
of Mr. Gutierrez's vehicle.
6. The aforesaid collision was initiated and caused when the rear-most vehicle
operated by defendant TRAPP failed to properly brake and stop its vehicle and maintain
adequate awareness and resultantly negligently, carelessly, and recklessly collided into the
(1st
vehicle operated by defendant AGOLI collision). As a result of the initial collision, there
were two additional collisions. The second collision involved a collision between the front of
defendant AGOLI's vehicle and the rear of plaintiff's vehicle traveling in the same lane. The
third collision occurred when the force of the impact propelled plaintiff's vehicle into the
vehicle traveling directly in front of him.
7. The police report filed in connection with this incident indicates that defendant
Closely"
TRAPP was guilty of "Following Too and that "based on the statements and physical
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conditions,"
evidence, it appears [defendant TRAPP] was driving too close for traffic thus
"1"
initiating the chain-reaction collision mentioned above. Annexed hereto as Exhibit is a
Certified Copy of the Police Report filed in connection with this matter confirming and
corroborating the above.
8. This action was commenced by the filing of a Summons and Verified Complaint
"2"
on January 1, 2017. Annexed hereto as Exhibit is a copy of Plaintiff's Summons and
Verified Complaint.
9. Issue was joined by defendants AGOLI and GUZE by filing of their Verified
Answer on February 28, 2017. Defendant TRAPP served his Verified Answer on May 7, 2017.
"3" defendants'
Annexed hereto as Exhibit is a copies of the Verified Answers.
10. Plaintiff served his Verified Bill of Particulars on or about February 15, 2018.
"4"
Annexed hereto as Exhibit is a copy of Plaintiff's Verified Bill of Particulars.
11. Plaintiff testified at an Examination Before Trial on September 28, 2018. A copy
of plaintiff's deposition transcript is annexed hereto as Exhibit "5".
12. Both defendant TRAPP and defendant AGOLI appeared for their respective
depositions on November 5, 2018. Defendant TRAPP's deposition transcript is annexed hereto
"6"
as Exhibit and defendant AGOLI's deposition transcript is annexed hereto as Exhibit "7".
13. The Note of Issue has not been filed in this action. the instant cross-
Therefore,
motion is timely.
PLAINTIFF'S SWORN EBT TESTIMONY
14. On the date of the four-car collision Mr. Gutierrez was a seat-belted operator of a
"1"
2015 Subaru Legacy. See Exhibit and Exhibit "5", p. 24. At the time of the collision, Mr.
Gutierrez was stopped in traffic in the middle lane of Verrazano Narrows Bridge, lower level, in
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"1" "5"
the eastbound direction. Exhibit and Exhibit at p. 27-28.
15. Mr. Gutierrez testified that his car was struck in the rear by the front portion of
the defendant AGOLI's car that was located directly behind him. Exhibit "5", p. 30, 32.
16. As a result of the heavy impact, Mr. Gutierrez's car was pushed into the vehicle
traveling in front of him. Exhibit "5", p. 30-32.
DEFENDANT AGOLI's SWORN EBT TESTIMONY
17. On the date and time of the collision, defendant AGOLI was the operator of a
"1"
2012 Ford Focus owned by his wife, defendant GUZE. Exhibit and Exhibit "7", p. 12.
18. Defendant AGOLI testified that immediately before the accident, he was at a
complete stop behind plaintiff's vehicle when defendant TRAPP rear-ended his vehicle pushing
itforward into the rear of plaintiff's vehicle. Exhibit "7", p. 21-25.
DEFENDANT TRAPP's SWORN EBT TESTIMONY
19. On the date and time of the collision, defendant TRAPP was the owner and
"1"
operator of a 2016 Nissan Rogue. Exhibit and Exhibit "6", p. 12.
20. Defendant TRAPP testified that immediately before the accident, he was
traveling one to one-and-a-half car lengths behind defendant AGOLI's vehicle with the speed of
approximately 30-35 miles per hour. Exhibit "6", p. 22-24. Two or three seconds before the
collision, defendant TRAPP noticed that defendant AGOLI's vehicle began to slow down.
Exhibit "6", p. 28. Although defendant TRAPP applied the brakes, he was unable to timely
stop and the front of his vehicle crashed into the rear of defendant AGOLI's vehicle. Exhibit
"6", p. 24. This caused the first impact in the four-car collision.
21. Defendant TRAPP testified that the force of the first impact caused the airbags in
his vehicle to deploy. Exhibit "6", p. 35.
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PLAINTIFF HAS ESTABLISHED HIS ENTITLEMENT TO SUMMARY JUDGMENT
SINCE DEFENDANT TRAPP INITIATED THE CHAIN REACTION COLLISION BY
REAR-ENDING A VEHICLE TRAVEING DIRECTLY BEHIND PLAINTIFF'S
VEHICLE
22. It isclear from the aforesaid pleadings, police report, and deposition testimony
that the vehicle operated by defendant TRAPP failed to maintain a safe distance behind the rear
of the vehicle located directly in front of it,and resultantly defendant TRAPP initiated the
chain-reaction collision involving plaintiff's vehicle.
23. New York State Vehicle and Traffic Law section 1129(a) provides that: "The
driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such vehicles and the traffic upon and the condition
roadway."
of the A violation of the Vehicle and Traffic Law constitutes negligence as a matter
of law and cannot be disregarded. Hellenbrecht v. Radeker, 309 A.D.2d 834, 766 N.Y.S.2d 81
(2d Dep't. 2003).
24. All drivers have an obligation to maintain a reasonably safe distance behind the
vehicle in front of him or her, operate his or her vehicle with reasonable care and with regard to
all actual and potential hazards and traffic conditions, keep his or her vehicle under reasonable
control and see that which he or she should see exercising the proper use of his or her senses.
(1st
See Dupont v. Reisner, 208 A.D.2d 375, 617 N.Y.S.2d 25 Dep't. 1994); see also McCarthy
v. Miller, 139 A.D.2d 500, 526 N.Y.S.2d 848 (2d Dep't. 1988). A driver also has the duty to
operate a vehicle at a sufficiently safe speed and to maintain a safe stopping distance to avoid
colliding with any preceding vehicles, taking into account both weather and road conditions.
(1st
Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 Dep't. 2006); Malone v. Marillo, 6
(1st
A.D.3d 324, 775 N.Y.S.2d 312 Dep't. 2004). Moreover, a vehicle following too closely to
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the lead vehicle cannot avoid the presumption of negligence by claiming the lead vehicle
suddenly stopped (see Francisco, supra; Tricoli v. Malik, 268 A.D.2d 469, 701 N.Y.S.2d 644
(2d Dep't. 2000)) or that road conditions prevented the rear vehicle from avoiding a collision
with the lead vehicle. See Faul v. Reilly, 29 A.D.3d 626, 816 N.Y.S.2d 502 (2d Dep't. 2006).
25. The Second Department has held that a rear-end collision establishes a prima
facie case of negligence on the part of the driver of the moving vehicle, requiring the operator of
accident."
that vehicle to come forward with a non-negligent explanation for the Shamah v.
Richmond County Ambulance Serv., 279 A.D.2d 564 at 565, 719 N.Y.S.2d 287 (2d Dep't.
2001). In a rear end collision with a stopped vehicle, a prima facie case of negligence is
established against the defendant operator. Filippazzo v. Santiago, 277 A.D.2d 419, 716
N.Y.S.2d 710 (2d Dep't. 2000).
26. The rearmost driver in a chain-reaction collision bears a presumption of
(1st
responsibility. Ferguson v. Honda Lease Trust, 34 AD3d 356 Dep't 2006).
27. A rear-end collision irnposes a duty on the operator of the offending vehicle to
explain how the accident occurred. Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 100 (2d
Dep't. 1996); Mendiolaza v. Novinski, 268 A.D.2d 462, 703 N.Y.S.2d 49 (2d. Dep't. 2000);
Youne v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585 (2d Dep't. 1985). "When such
a rear-ended collision occurs, the injured occupants of the front vehicle are entitled to summary
judgment on liability,unless the driver of the following vehicle can provide a non-negligent
collision."
explanation, in evidentiary form, for the Johnson v. Phillips, 261 A.D.2d 269, 690
(1st
N.Y.S.2d 545 Dep't. 1999) (emphasis added).
28. In this case itis undisputed that the vehicle operated defendant TRAPP rear-
by
ended the vehicle operated by defendant AGOLI propelling it into the rear of plaintiff's vehicle.
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Resultantly, plaintiff's vehicle was thrust into the rear bumper of the vehicle traveling in front
of plaintiff's vehicle.
29. Since defendant TRAPP is solely responsible and culpable for the collision and
sequence of events that ensued, plaintiff has established a prima facie case against defendant
TRAPP and the burden shifts to the defendant to rebut the presumption of negligence that arises
in rear-end collisions. However, since defendant TRAPP admitted that immediately before the
collision he was following defendant AGOLI's vehicle at a merely one to one-and-a-half car
lengths and was unable to timely stop when defendant AGOLI started to slow down, he is
unable to rebut the presumption of negligence.
30. In accordance with well-established case law, the plaintiff, through his own
Defendants'
testimony as well as own sworn admissions, has established a prima facie case for
summary judgment since plaintiff's vehicle was struck in the rear when defendant TRAPP
failed to timely stop and admittedly pushed another vehicle into the rear of plaintiff's vehicle.
Despite having an opportunity to assert a non-negligent explanation for the accident, the
defendant TRAPP has utterly failed to do so.
31. As such, itis uncontroverted that plaintiff has established a prima facie case of
liability against defendant TRAPP. Defendant's sworn testimony can lead to only one
conclusion; to wit, that defendant TRAPP be adjudged liable for the accident herein and that
plaintiff be granted summary judgment on such issue. Defendant simply cannot come forward
with sufficient facts to raise a triable issue regarding a defense or with any evidence of negligent
conduct on the part of the plaintiff where defendants was under a duty to pay attention to the
roadway and to maintain a safe distance between the two vehicles. (See Vehicle and Traffic
Law Section 1129(a)).
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32. No other application for the relief requested herein has been made to this or any
other Court.
WHEREFORE, it is respectfully requested that the relief requested by the plaintiff, be
granted in its entirety; together with such other and further relief as to this Court seems just and
proper.
Dated: Garden City, New York
December 20, 2018
---._
Olga Siamionava-Muzio
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Preview
FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 SUPREME COURT OF THE STATE OF NEW YORK Index No.:150266/2017 COUNTY OF NEW YORK ---------------------------- ------- -----X ATTORNEY'S JOHN H. GUTIERREZ, AFFIRMATION Plaintiff, -against- FREDERICK V. TRAPP, GOJART AGOLI and NERTILA GUZE, Defendants. ---------- -------------------------------------X Olga Siamionava-Muzio, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true, under the penalties of perjury: 1. I am an associate in the firm of SCHWARTZAPFEL LAWYERS P.C., attorneys for the Plaintiff herein and, as such, am fully familiar with the facts and circumstances herein. 2. This Affinnation is submitted in support of the instant motion seeking an Order pursuant to CPLR §3212, granting Plaintiff Summary Judgment on the issue of liability and setting this matter down for an immediate trial on damages. 3. This case involves a four (4) car chain reaction collision that occurred on April 28, 2016, for which defendant FREDERICK V. TRAPP ("TRAPP") is entirely at fault. On this date, Mr. Gutierrez was stopped in traffic on Verrazano Bridge. The collision was initiated by defendant TRAPP whose vehicle initially rear-ended the vehicle owned by defendant NERTILA GUZE ("GUZE") and operated by defendant GOJART AGOLI ("AGOLI") propelling it forward into Mr. Gutierrez's vehicle situated directly in front it. Due to the force of the impact, Mr. Gutierrez's vehicle was also propelled forward and struck another vehicle 1 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 that was stopped in front of Mr. Gutierrez in the same lane. 4. The instant motion should be granted because, as outlined below, plaintiff has established a prima facie entitlement to a summary judgment on the issue of liability, defendant TRAPP is unable to rebut the presumption of negligence under the circumstances of this case, and no issues of fact exist as to the defendant TRAPP's liability. FACTUAL OVERVIEW AND PROCEDURAL HISTORY 5. This is an action for serious personal injuries sustained by Mr. Gutierrez arising from an automobile collision that occurred on April 28, 2016, at approximately 6:30 am on the Verrazano Bridge, lower level. On this date at this location, there was a four-car collision and Mr. Gutierrez's vehicle was located as the second vehicle in line out of the four (4) cars involved. Mr. Gutierrez's vehicle was struck in the rear by the vehicle operated by defendant AGOLI after defendant TRAPP rear-ended defendant AGOLI's vehicle pushing itinto the rear of Mr. Gutierrez's vehicle. 6. The aforesaid collision was initiated and caused when the rear-most vehicle operated by defendant TRAPP failed to properly brake and stop its vehicle and maintain adequate awareness and resultantly negligently, carelessly, and recklessly collided into the (1st vehicle operated by defendant AGOLI collision). As a result of the initial collision, there were two additional collisions. The second collision involved a collision between the front of defendant AGOLI's vehicle and the rear of plaintiff's vehicle traveling in the same lane. The third collision occurred when the force of the impact propelled plaintiff's vehicle into the vehicle traveling directly in front of him. 7. The police report filed in connection with this incident indicates that defendant Closely" TRAPP was guilty of "Following Too and that "based on the statements and physical 2 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 conditions," evidence, it appears [defendant TRAPP] was driving too close for traffic thus "1" initiating the chain-reaction collision mentioned above. Annexed hereto as Exhibit is a Certified Copy of the Police Report filed in connection with this matter confirming and corroborating the above. 8. This action was commenced by the filing of a Summons and Verified Complaint "2" on January 1, 2017. Annexed hereto as Exhibit is a copy of Plaintiff's Summons and Verified Complaint. 9. Issue was joined by defendants AGOLI and GUZE by filing of their Verified Answer on February 28, 2017. Defendant TRAPP served his Verified Answer on May 7, 2017. "3" defendants' Annexed hereto as Exhibit is a copies of the Verified Answers. 10. Plaintiff served his Verified Bill of Particulars on or about February 15, 2018. "4" Annexed hereto as Exhibit is a copy of Plaintiff's Verified Bill of Particulars. 11. Plaintiff testified at an Examination Before Trial on September 28, 2018. A copy of plaintiff's deposition transcript is annexed hereto as Exhibit "5". 12. Both defendant TRAPP and defendant AGOLI appeared for their respective depositions on November 5, 2018. Defendant TRAPP's deposition transcript is annexed hereto "6" as Exhibit and defendant AGOLI's deposition transcript is annexed hereto as Exhibit "7". 13. The Note of Issue has not been filed in this action. the instant cross- Therefore, motion is timely. PLAINTIFF'S SWORN EBT TESTIMONY 14. On the date of the four-car collision Mr. Gutierrez was a seat-belted operator of a "1" 2015 Subaru Legacy. See Exhibit and Exhibit "5", p. 24. At the time of the collision, Mr. Gutierrez was stopped in traffic in the middle lane of Verrazano Narrows Bridge, lower level, in 3 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 "1" "5" the eastbound direction. Exhibit and Exhibit at p. 27-28. 15. Mr. Gutierrez testified that his car was struck in the rear by the front portion of the defendant AGOLI's car that was located directly behind him. Exhibit "5", p. 30, 32. 16. As a result of the heavy impact, Mr. Gutierrez's car was pushed into the vehicle traveling in front of him. Exhibit "5", p. 30-32. DEFENDANT AGOLI's SWORN EBT TESTIMONY 17. On the date and time of the collision, defendant AGOLI was the operator of a "1" 2012 Ford Focus owned by his wife, defendant GUZE. Exhibit and Exhibit "7", p. 12. 18. Defendant AGOLI testified that immediately before the accident, he was at a complete stop behind plaintiff's vehicle when defendant TRAPP rear-ended his vehicle pushing itforward into the rear of plaintiff's vehicle. Exhibit "7", p. 21-25. DEFENDANT TRAPP's SWORN EBT TESTIMONY 19. On the date and time of the collision, defendant TRAPP was the owner and "1" operator of a 2016 Nissan Rogue. Exhibit and Exhibit "6", p. 12. 20. Defendant TRAPP testified that immediately before the accident, he was traveling one to one-and-a-half car lengths behind defendant AGOLI's vehicle with the speed of approximately 30-35 miles per hour. Exhibit "6", p. 22-24. Two or three seconds before the collision, defendant TRAPP noticed that defendant AGOLI's vehicle began to slow down. Exhibit "6", p. 28. Although defendant TRAPP applied the brakes, he was unable to timely stop and the front of his vehicle crashed into the rear of defendant AGOLI's vehicle. Exhibit "6", p. 24. This caused the first impact in the four-car collision. 21. Defendant TRAPP testified that the force of the first impact caused the airbags in his vehicle to deploy. Exhibit "6", p. 35. 4 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 PLAINTIFF HAS ESTABLISHED HIS ENTITLEMENT TO SUMMARY JUDGMENT SINCE DEFENDANT TRAPP INITIATED THE CHAIN REACTION COLLISION BY REAR-ENDING A VEHICLE TRAVEING DIRECTLY BEHIND PLAINTIFF'S VEHICLE 22. It isclear from the aforesaid pleadings, police report, and deposition testimony that the vehicle operated by defendant TRAPP failed to maintain a safe distance behind the rear of the vehicle located directly in front of it,and resultantly defendant TRAPP initiated the chain-reaction collision involving plaintiff's vehicle. 23. New York State Vehicle and Traffic Law section 1129(a) provides that: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition roadway." of the A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law and cannot be disregarded. Hellenbrecht v. Radeker, 309 A.D.2d 834, 766 N.Y.S.2d 81 (2d Dep't. 2003). 24. All drivers have an obligation to maintain a reasonably safe distance behind the vehicle in front of him or her, operate his or her vehicle with reasonable care and with regard to all actual and potential hazards and traffic conditions, keep his or her vehicle under reasonable control and see that which he or she should see exercising the proper use of his or her senses. (1st See Dupont v. Reisner, 208 A.D.2d 375, 617 N.Y.S.2d 25 Dep't. 1994); see also McCarthy v. Miller, 139 A.D.2d 500, 526 N.Y.S.2d 848 (2d Dep't. 1988). A driver also has the duty to operate a vehicle at a sufficiently safe speed and to maintain a safe stopping distance to avoid colliding with any preceding vehicles, taking into account both weather and road conditions. (1st Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 Dep't. 2006); Malone v. Marillo, 6 (1st A.D.3d 324, 775 N.Y.S.2d 312 Dep't. 2004). Moreover, a vehicle following too closely to 5 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 the lead vehicle cannot avoid the presumption of negligence by claiming the lead vehicle suddenly stopped (see Francisco, supra; Tricoli v. Malik, 268 A.D.2d 469, 701 N.Y.S.2d 644 (2d Dep't. 2000)) or that road conditions prevented the rear vehicle from avoiding a collision with the lead vehicle. See Faul v. Reilly, 29 A.D.3d 626, 816 N.Y.S.2d 502 (2d Dep't. 2006). 25. The Second Department has held that a rear-end collision establishes a prima facie case of negligence on the part of the driver of the moving vehicle, requiring the operator of accident." that vehicle to come forward with a non-negligent explanation for the Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564 at 565, 719 N.Y.S.2d 287 (2d Dep't. 2001). In a rear end collision with a stopped vehicle, a prima facie case of negligence is established against the defendant operator. Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 (2d Dep't. 2000). 26. The rearmost driver in a chain-reaction collision bears a presumption of (1st responsibility. Ferguson v. Honda Lease Trust, 34 AD3d 356 Dep't 2006). 27. A rear-end collision irnposes a duty on the operator of the offending vehicle to explain how the accident occurred. Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 100 (2d Dep't. 1996); Mendiolaza v. Novinski, 268 A.D.2d 462, 703 N.Y.S.2d 49 (2d. Dep't. 2000); Youne v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585 (2d Dep't. 1985). "When such a rear-ended collision occurs, the injured occupants of the front vehicle are entitled to summary judgment on liability,unless the driver of the following vehicle can provide a non-negligent collision." explanation, in evidentiary form, for the Johnson v. Phillips, 261 A.D.2d 269, 690 (1st N.Y.S.2d 545 Dep't. 1999) (emphasis added). 28. In this case itis undisputed that the vehicle operated defendant TRAPP rear- by ended the vehicle operated by defendant AGOLI propelling it into the rear of plaintiff's vehicle. 6 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 Resultantly, plaintiff's vehicle was thrust into the rear bumper of the vehicle traveling in front of plaintiff's vehicle. 29. Since defendant TRAPP is solely responsible and culpable for the collision and sequence of events that ensued, plaintiff has established a prima facie case against defendant TRAPP and the burden shifts to the defendant to rebut the presumption of negligence that arises in rear-end collisions. However, since defendant TRAPP admitted that immediately before the collision he was following defendant AGOLI's vehicle at a merely one to one-and-a-half car lengths and was unable to timely stop when defendant AGOLI started to slow down, he is unable to rebut the presumption of negligence. 30. In accordance with well-established case law, the plaintiff, through his own Defendants' testimony as well as own sworn admissions, has established a prima facie case for summary judgment since plaintiff's vehicle was struck in the rear when defendant TRAPP failed to timely stop and admittedly pushed another vehicle into the rear of plaintiff's vehicle. Despite having an opportunity to assert a non-negligent explanation for the accident, the defendant TRAPP has utterly failed to do so. 31. As such, itis uncontroverted that plaintiff has established a prima facie case of liability against defendant TRAPP. Defendant's sworn testimony can lead to only one conclusion; to wit, that defendant TRAPP be adjudged liable for the accident herein and that plaintiff be granted summary judgment on such issue. Defendant simply cannot come forward with sufficient facts to raise a triable issue regarding a defense or with any evidence of negligent conduct on the part of the plaintiff where defendants was under a duty to pay attention to the roadway and to maintain a safe distance between the two vehicles. (See Vehicle and Traffic Law Section 1129(a)). 7 of 8 FILED: NEW YORK COUNTY CLERK 12/20/2018 05:33 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 12/20/2018 32. No other application for the relief requested herein has been made to this or any other Court. WHEREFORE, it is respectfully requested that the relief requested by the plaintiff, be granted in its entirety; together with such other and further relief as to this Court seems just and proper. Dated: Garden City, New York December 20, 2018 ---._ Olga Siamionava-Muzio 8 of 8