Butler v. Petrova

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered September 23, 2013, which denied the motion of defendants Kim S. Cottrell and Frank Elam for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this three-car chain collision, defendants Cottrell and Elam established entitlement to judgment as a matter of law. Cottrell submitted an affidavit wherein she stated that the vehicle she was driving was stopped behind plaintiffs' vehicle at a red light when a third vehicle, operated by defendant Iskra Petrova and owned by defendant Peter K. Petrova, rear-ended her vehicle, causing it to move forward and collide into the rear of plaintiffs' vehicle ( see Cabrera v. Rodriguez, 72 A.D.3d 553, 900 N.Y.S.2d 29 [1st Dept.2010];Rue v. Stokes, 191 A.D.2d 245, 594 N.Y.S.2d 749 [1st Dept.1993] ).

In opposition, neither plaintiffs nor the Petrova defendants raised a triable issue of fact. Indeed, plaintiff Catherine Butler submitted an affidavit wherein she detailed the accident in a manner that was consistent with Cottrell's version. Furthermore, denial of the motion as premature was improper since “[t]he mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient to deny such a motion” ( Flores v. City of New York, 66 A.D.3d 599, 600, 888 N.Y.S.2d 27 [1st Dept.2009] ).