Romano v. Bile

Frank Composto, J. Plaintiffs move for summary judgment. This is a personal injury action of a type we meet with recurring frequency. The moving papers allege that plaintiffs’ automobile, after being fully stopped for upwards of 40 seconds waiting for a signal light to change, ivas struck in the rear by defendants’ car. [544] This court approaches a determination of this motion with the caution suggested in Schneider v. Miecznikowski (16 A D 2d 177-178) and reiterated in Connell v. Buitekant (17 A D 2d 944) that summary judgment “ may not properly be invoked in automobile accident cases, except in rare instances. ” The plaintiffs’ allegation inferentially made that the defendant operator was under the influence of alcohol, and denied by the defendant, is disregarded by the court. The question of whether or not defendant was negligent and plaintiff free of negligence and whether summary judgment should be granted is not dependent on the defendant’s alleged condition. The crux of this motion is whether on the papers submitted a “ material or triable issue of fact is presented.” If it is, the motion must be denied. (Di Menna & Sons v. City of New York, 301 N. Y. 118; Connell v. Buitekant, supra.) The court read the affidavits submitted in opposition to the motion carefully and thoroughly, seeking any statement or averment that would tend, to create an issue of fact. The only statement made by the defendant in answer to the. allegation that plaintiffs’ car was struck in the rear after standing for 40 seconds or more was his bald conclusory reply that ‘ ‘ I was in no way negligent in the operation of the automobile which I was driving.” His affidavit is barren of any statement of fact or explanation on which his self-proclaimed freedom from negligence may be predicated. Ho neither gives nor attempts to give any explanation as to how or why his automobile' collided with the rear of a stopped car. Defendant’s self-serving,, self-determining exculpatory statement that he “was-in no way negligent in the operation of the automobile ” creates no material or triable issue of fact. Motion granted.