In this action for negligence, the plaintiff, DEOCHAN [*2]RAMPERSAUD, seeks to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on October 2, 2008, between the vehicle owned and operated by James Cunningham, and the vehicle owned by defendant Sewdhari Lowton and operated by defendant Jerry Parmanand. The accident took place on Albert Road at its intersection with Cross Bay Boulevard in Queens County, New York. Plaintiff, Deochan Rampersaud, a passenger in the Parmanand vehicle alleges that he sustained injuries when the vehicle in which he was a passenger was struck in the rear by the Cunningham vehicle.

This action was commenced by the plaintiff by the service of a summons and complaint on March 29, 2011. Issue was joined by service of defendant Parmanand and Lowton's verified answer with cross-claim dated July 18, 2011. Defendants Parmanand and Lowton now move for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing the plaintiff's complaint and all cross-claims against them on the ground that their vehicle was stopped at the time of the accident and plaintiff's alleged injuries were caused solely by the negligence of co-defendant Cunningham who struck the Parmanand vehicle in the rear.

In support of the motion, the movants submit an affirmation from counsel, William D. Hartlein, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; and copies of the transcripts of the examinations before trial of the Deochan Rampersaud and James V. Cunningham. The movant, Jerry Parmanand, has failed to appear for court ordered depositions on several occasions.

Plaintiff, Deochan Rampersaud, age 32, testified at an examination before trial on August 2, 2012 that he was involved in a motor vehicle accident on October 2, 2008. At that time he was a front seat passenger in a commercial van operated by Jerry Parmanand and owned by Sewdhari Lowton. Plaintiff stated that he was coming home from a commercial flooring job and he was going to be dropped off at his home. His vehicle was proceeding on Albert Road and was stopped at a stop sign at the intersection of Cross Bay Boulevard when it was struck in the rear by a Dodge Durango operated by defendant Cunningham. Plaintiff testified the vehicle was stopped for ten seconds prior to being hit in the rear. As a result of the impact the vehicle was pushed five to ten feet into the intersection of Cross Bay Boulevard. The plaintiff left the scene in an ambulance which transported him to the emergency room at Jamaica Hospital where he was treated for pain to his lower back, right side, hip, and neck.

Defendant, James Cunningham, age 70, testified at an [*3]examination before trial on January 3, 2013, that on the date of the accident he was driving a 2001 Dodge Dakota pickup truck. He stated that as he was proceeding on Albert Street approaching the stop sign at Cross Bay Boulevard, he observed the plaintiff's van in front of him waiting at the stop sign. He stopped behind the van. He stated that the van then started to move but because of traffic on Cross Bay Boulevard the van stopped again. He stated that he took his foot off the brake when the plaintiff's vehicle first started moving but struck the vehicle in front of him in the rear when that vehicle stopped a second time prior to proceeding across the intersection.

Defendant Parmanand contends that defendant Cunningham was negligent in the operation of his vehicle in striking Parmanand's vehicle in the rear. Parmanand contends that the accident was caused solely by the negligence of Cunningham in that his vehicle was traveling too closely in violation of VTL § 1129(a) and that Cunningham failed to safely stop his vehicle prior to rear-ending the Parmanand's stopped vehicle. Counsel contends, therefore, that said defendant is entitled to summary judgment dismissing the plaintiff's complaint and all cross-claims as co-defendant Cunningham was solely responsible for causing the accident while Parmanand was free from culpable conduct.

Counsel for Cunningham, Gary F. Borrelli, Esq. opposes the motion on the ground that the moving parties, Jerry Parmanand and Sewdhari Lowton, have both failed to appear for depositions and have failed to submit affidavits of fact concerning how the accident took place. Further, counsel contends that based on Cunningham's testimony stating that Parmanand proceeded ahead from the stop sign and then immediately stopped there is a question of the comparative negligence of Parmanand's actions (citing Gaeta v Carter, 6 AD3d 576 [2d Dept. 2006][the frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision]).

Plaintiff's attorney, Michael Naimark, Esq., opposes the motion and cross-moves for an order striking the answer of Parmanand on the ground that he failed to appear for court ordered depositions on June 6, 2012, August 2, 2012, November 15, 2012, and January 3, 2013. Counsel was informed by Parmanand's attorney that Parmanand was not cooperating with them. Counsel also asserts that the motion is premature as the defendant has failed to appear for a deposition and could not be questioned as to his actions when he was proceeding from the stop sign.

In opposition to the cross-motion to strike, counsel for [*4]Parmanand states that he is having difficulty locating his client but he retained Complete Lawyers Service in January 2013 to locate him as well as the owner of the vehicle Sewdhari Lowton. Said defendants were located by the lawyers service on February 23, 2013.

As to the plaintiff's cross-motion to strike the answer of the Parmanand defendants, "a court may, inter alia, issue an order "striking out pleadings or . . . rendering a judgment by default" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126 [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58 AD3d 656 [2d Dept. 2009]; Paca v City of New York, 51 AD3d 991 [2d Dept. 2008]; Maignan v Nahar, 37 AD3d 557 [2d Dept. 2007]).

The courts have held that "while it is the obligation of the client to remain in contact with his attorney so that the attorney can communicate with him, the client's neglect of that obligation is not equivalent to a willful failure to appear for examination before trial as the client has not been informed of the examination" (Heyward v Benyarko, 82 AD2d 751 [1st Dept. 1981]). The Second Department holds, under these circumstances, that in the absence of evidence that the defendant willfully and contumaciously failed to appear for an examination before trial, the appropriate remedy was to preclude defendant from offering any testimony at trial unless he is deposed before the trial (see Facey v Silver Express Cab Corp., 87 AD3d 1053 [2d Dept. 2011]; Cobenas v Ginsburg Dev. Cos., LLC, 74 AD3d 1269 [2d Dept. 2010]; Patel v DeLeon, 43 AD3d 432 [2d Dept. 2007]; Tine v Courtview Owners Corp., 40 AD3d 966 [2d Dept. 2007]; Williams v Ryder TRS, Inc., 29 AD3d 784 [2d Dept. 2006]; Solomon v Horie Karate Dojo, 283 AD2d 480 [2d Dept. 2001]).

Therefore, the plaintiff's cross-motion is granted to the extent that defendants JERRY PARMANAND and SEWDHARI LOWTON shall be precluded from offering evidence on their own behalf at trial unless they appear for an examination before trial within 60 days of the date scheduled for trial (see Williams v Ryder TRS Inc., 29 AD3d 784 [2d Dept. 2006]; Solomon v Horie Karate Dojo, 283 AD2d 480[2d Dept. 2001]).

With respect to Parmanand's motion for summary judgment, this court finds that the proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any [*5]material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept. 2003]). It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Raimondo v Plunkitt, 102 AD3d 851 [2d Dept. 2013]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 2d Dept. 2007]; Reed v New York City Transit Authority, 299 AD2 330 [2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004].

Here, although Cunningham testified that the Parmanand vehicle was stopped at the stop sign prior to his striking the vehicle in the rear, he also testified that the lead vehicle started to proceed into the intersection and then immediately stopped again due to traffic on Cross Bay Boulevard. In view of Cunningham's testimony that the Parmanand vehicle started and then suddenly stopped there is a triable issue of fact as to whether Parmanand negligently caused or contributed to the accident and whether there is a nonnegligent explanation for the rear-end collision (see Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012]; Vargas v Luxury Family Corp., 77 AD3d 820 [2d Dept. 2010]; Delayhaye v Caledonia Limo & Car Serv., Inc., 49 AD3d 588 [2d Dept. 2008]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]).

Accordingly, the motion by defendant Parmanand for an order granting summary judgment dismissing the plaintiff's complaint and all cross-claims is denied.

Dated: August 27, 2013

Long Island City, N.Y

_______________________ROBERT J. MCDONALDJ.S.C.