Jackson v. Diabate

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered February 14, 2000, which, to the extent appealed from, denied defendant-appellant’s cross motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against him. Defendant-appellant, the driver of the vehicle in which plaintiff was a passenger, was entitled to summary judgment in this personal injury action inasmuch as plaintiff’s unrebutted testimony conclusively established that said vehicle was struck from the rear whilé stopped for a red light (Diller v City of N. Y. Police Dept., 269 AD2d 143; Rue v Stokes, 191 AD2d 245; see also, Johnson v Phillips, 261 AD2d 269). Under such circumstances, any driver’s failure to comply with discovery demands did not warrant denial of summary judgment, given that there was no likelihood that further discovery might lead to facts that would impose liability on defendant or relieve co-defendant of sole liability (Noonan v New York Blood Ctr., 269 AD2d 323; Green & Co. v William Penn Life Ins. Co., 220 AD2d 317). We have considered the remaining contentions of plaintiff and of defendants-respondents and find them to be without merit. Concur — Nardelli, J. P., Williams, Wallach, Rubin and Friedman, JJ.