The following electronically filed (“EF”) documents read on this motion by Alethea Godette (“Ms. Godette” or “plaintiff’) seeking an order granting plaintiff summary judgment pursuant to CPLR §3212 against defendants, on the issue of liability under the innocent passenger standard, dismissing the affirmative defenses of comparative negligence, and for such other and further relief as to this Court may deem just and proper. Papers Numbered Notice of Motion-Affirmation-Exhibits-Service EF 09-16 Affirmation in Opposition-Exhibits-Service EF 18-19 Upon the foregoing papers, it is ordered that this motion is determined as follows: This is an action for damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle collision. The plaintiff alleges that on April 15, 2019, she was a passenger in the motor vehicle owned by Charles McKoy (“Mr. McKoy”) and operated by Christine Godettw (“Ms. Godettw”), who was involved in a motor collision with Arjun Singh (“Mr. Singh”) at or near the intersection of 118th Street and Jamaica Avenue, in the County of Queens, city and state of New York (“subject accident”). On November 29, 2020, the plaintiff commenced the instant action against the defendants. On March 18, 2021, issue was joined by Mr. Singh, who interposed an answer with seven (7) affirmative defenses (e.g., culpable conduct, assumption of risk, seatbelt law, collateral source, mitigate damages, emergency doctrine, and serious injury, etc.) and a cross claim against the co-defendants. Moreover, on April 5, 2021, co-defendants, Ms. Godettw and Mr. McKoy, interposed an answer with three (3) affirmative defenses (e.g., comparative negligence, assumption of risk, and serious injury, etc.). On May 18, 2021, the court issued a preliminary conference order, which states, in relevant part, that “[e]xamination before trial for all parties/non-parties shall be conducted remotely at a mutually convenient time, or, if so agreed by the parties, in person at a mutually agreed location and time, within Ninety (90) days of this order.” Notwithstanding the same, the parties have not conducted examinations before trial (“EBT”) since the inception of the instant action. Now, the plaintiff seeks summary judgment, on the issue of liability, pursuant to CPLR §3212, and to dismiss the defendants’ affirmative defenses, pursuant to CPLR §3211(b). In support of said motion, the plaintiff avers that on April 15, 2019, she was involved in a motor vehicle collision wherein, she was a passenger in motor vehicle owned by Mr. McKoy and operated by the Ms. Godettw, who had a motor vehicle collision with Mr. Singh. In reliance on Rosa v. Colonial Transit, 276 AD2d 781 [2d Dept 2000], the defense counsel for Mr. Singh argues that “[g]iven that there have been no depositions, there has been no “opportunity to obtain evidence pertinent to the cause of action”; thus, the granting of summary judgment would be inappropriate.” In anticipation of defense counsel’s argument, plaintiff’s counsel asserted in his motion that the “defendant’s failure to raise any factual issues to absolve him of liability or even submit a sworn statement of facts or to credibly explain the failure to do so defeats the need for discovery. Since defendant is the party with knowledge of the factual circumstances as to how he collided with the front vehicle, discovery would serve no purpose.” The codefendants, Ms. Godettw and Mr. McKoy, did not oppose the instant motion for summary judgement. “Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law” (Reyes v. Arco Wenworth Mgt. Corp., 83 AD3d 47, 54 [2d Dept 2011], citing Andre v. Pomeroy, 35 NY2d 361, 364 [1974]; see also Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR §3212; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1984]). Failure to make such a showing requires denying the motion, regardless of the sufficiency of any opposition (Vega, 18 NY3d at 503). The opposing party overcomes the movant’s showing only by introducing “evidentiary proof in admissible form sufficient to require a trial of material questions” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Furthermore, considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562). “The court’s function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues” (Ruiz v. Griffin, 71 AD2d 1112, 1115 [2d Dept 2010] [internal quotations marks omitted]). Furthermore, “[t]he 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 as between two defendant drivers (Romain v. City of New York, 177 AD3d 590 [2d Dept 2019], citing CPLR §3212(g); Jung v. Glover, 169 AD3d 782 [2d Dept 2019]; Phillips v. D&D Carting Co., Inc., 136 AD3d 18 [2d Dept 2015]; Anzel v. Pistorinoi, 105 AD3d 784 [2d Dept 2013]; Medina v. Rodriguez, 92 AD3d 850 [2d Dept 2012]; Silberman v. Surrey Cadillac Limousine Serv., 109 AD2d 833 [2d Dept 1985]). Here, the plaintiff made a prima facie showing of entitlement to summary judgment on her motion. Moreover, the defendants failed to raise a triable issue of fact (Rodriquez v. City of New York, 31 NY3d 312 [2018]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). It is uncontroverted that the plaintiff was an innocent passenger in Mr. McKoy’s vehicle, which was driven by Ms. Godettw. Neither driver submitted an affidavit asserting that the plaintiff engaged in culpable conduct, which contributed to the happening of the subject accident. (see Phillips v. D&D Carting Co., Inc., 136 AD3d 18 [2d Dept 2015]; Lopez v. Suggs, 186 AD3d 589 [2d Dept 2020]). Moreover, it is well settled law that to be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (see Rodriquez v. City of New York, 31 NY3d 312 [2018]; Edgerton v. City of New York, 160 AD3d 809 [2d Dept 2018]). Contrary to Mr. Singh’s contentions, the plaintiff’s motion is not premature, as he failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence and that facts essential to justify opposition to the motion is exclusively within the knowledge and control of the plaintiff. (Lopez v. Suggs, 186 AD3d 589 [2d Dept 2020]; Harrinarain v. Sisters of St. Joseph, 173 AD3d 983 [2d Dept 2019]; Kerolle v. Nicholson, 172 AD3d 1187 [2d Dept 2018]); Theresa Striano Revocable Trust v. Hoffman, 71 AD3d 993 [2d Dept 2010]). As the Appellate Division held in Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736 [2d Dept 2007], “[t]he mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion.” (see also Lopez v. Suggs, 186 AD3d 589 [2d Dept 2020]). Lastly, the defendants failed to oppose that branch of plaintiff’s motion, which seeks to dismiss their affirmative defenses based upon comparative negligence. “CPLR §3211(b) provides that ‘[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.’ When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense’” (Shah v. Mitra, 171 AD3d 971 [2d Dept 2019], quoting Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 748 [2d Dept 2010]). On a motion pursuant to CPLR §3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR §3211(a)(7), and the factual assertions of the defense will be accepted as true. (Shah v. Mitra, 171 AD3d 971 [2d Dept 2019], quoting Wells Fargo Bank, N.A. v. Rios, 160 AD3d 912, 913 [2d Dept 2018]). “Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed” (Shah v. Mitra, 171 AD3d 971 [2d Dept 2019], quoting Wells Fargo Bank, N.A. v. Rios, 160 AD3d 912, 913 [2d Dept 2018]). Here the defendants’ affirmative defense based upon comparative negligence must be dismissed because, they failed to oppose that branch of plaintiff’s motion to dismiss. (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Bosco Credit v. Trust Series 2012-4 v. Johnson, 177 AD3d 561 [1st Dept 2019]). More importantly, the defendants’ comparative negligence defense lacks merit. Accordingly, it is hereby ORDERED that the plaintiff’s motion for summary judgment, on the issue of liability, pursuant to CPLR §3212, is granted; and it is further, ORDERED that defendant’s, Arjun Singh, first affirmative defense is dismissed with prejudice; and it is further, ORDERED that defendants’, Christine Godettw and Charles McKoy, first affirmative defense is dismissed with prejudice except that portion, which asserts that the plaintiff failed to wear a seatbelt and/or other restraint in accordance with VTL §1229-C; and it is further, ORDERED that plaintiff shall serve a copy of this decision and order with notice of entry upon the defendants on or before July 30, 2021. The foregoing constitutes the decision and order of the court. Dated: July 16, 2021
