Ojelade v. Akhtar

Ojelade v Akhtar

2025 NY Slip Op 31886(U)

May 12, 2025

Supreme Court, Kings County

Docket Number: Index No. 524142/2018

Judge: Lisa S. Ottley

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED: KINGS COUNTY CLERK 05/23/2025 01:54 PM INDEX NO. 524142/2018

NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/23/2025

S:UPREM.E COURT OF THE.STATE OF.NEw·v.oRK.

COUNTY OF KINGS-PART 24

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OLAWALE OJELAbE, Mot. Seq. #'4

Plaintiff, Index# 514142/2018

-agafnst~ DECISION and ORDER

MUHAMMAD AKHTAR,

Defendant.

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HON. LISA S. OTTLEY

~ecitatii:>i1, as required by ·CPLR 22i9(a ), .Pf the papers c;onsider~d in the review of this Notice of

Motion forSummaryJudg mentsubmitted on Mayl2, 2025.

Papers Numbered

Notice of Motion and Affirmation .. ,.. ······~·· .. ·......................... , ................. l&i[Exh.1-12]

Affirmation in Oppositioh; .. ~···,····• .. ,.............,., ......... ,......•·•···· .. ,·.,········· .. ···· .. ··,,·.3 [Exh. A]

Plaintiff moves for ~m order pu rsuarit to CPLR 3212 (1) granting summary judgment in

favor arid against the defendant, Muhammad Akhtar::0n the.issue of liability, (2) pursuantto CPLR

3211(b.) striking 'the affirmative ·defenses of co.nt ributqry negl]gence, q.:dpable conduct,

assumption of risk emergency situation .and failure to wear a seatbelt; and {3) precluding

.~efend,;mt Muhammad Akhtar for fail ore. to.appear for deposition, fromtestifyingat the time of

·frial and/or. submitting an. affidavit in oppo•sition to a summary· Judgment motion. Defendant

opposesthe motion the. grounds t.hc1t there are issues of fa1:t Which preclude. summary judgment,

there is outstanding discovery, and defendant has not been prese.nte.d for his:deposi:tion.

This is an action for personal injuries allegedly sustained by the plaintiff as a result of a

motor vehicle accidentwhich took place on April 30, 2018....Defendant interposed· and filed .an

Answer settingJorth affirmative defenses. The parties appeared fpr a pfelhninary conference

and an Order setting for the schedule for discovery was issued on February 22, 2022, directing

thatthe parfies tompl.ete deposition:on or befo.r~ May .ZO, 2022., however, the d·epositions.were·

rescheduled for June 15, 2022 (plaintiff) and June 16, 2022 (defendan,J. ·rhe defendant failed to

appear for his deposition Ori June 16) 2022. Ther~after,. the court issued. ~nether order req.uiring.

the d~fenda.ntto app~ar and.:complete his deposition on June 1, 2023. Followin·g the compliance,

conference, the deposition of the defendant was rescheduled for September 18,. 2023, however,

at defendant1s counsel requ.est th~ deposition was ?idjpurned. to October 31, 202~~ due to

defendant's unavailability, A final j1re·-note cqnference order wa.s filed 9n or about Aug~st 25,

2023; and the defendant was ordered to appear for deposition on or before October 31, 2023.

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FILED: KINGS COUNTY CLERK 05/23/2025 01:54 PM INDEX NO. 524142/2018

NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/23/2025

On October 31, 2023, defendant's attorney notified plaintiffs counsel that the defendant was

not avail.able for his deposition, Thereafter, plaintiff moved for an order -of preclusion due to

plaintiff's· failure to appe:ar for his depo.sitioil, anc;I the coµrt ordered c;lefendant-"to appear for

deposition on or about March 5:, 2024. Defendant faile:.d to appear for the court ordered

depositions scheduled on March 5, 2024, aild July 17, 2024~ The court issued an order o.n May

26, 2024, which held th.at defendant/s· failure,. to comply would ·resuit ·in defen~ant being

preclude·d from testifying at the time oftriaL Thereafter, another order was issued by the Central

Complia.nce Part1 the Hon. Leon .Ruchelsman, which setforth new dates for the filing .of a Note of

Issue on 5/2/2025 iand deposition: of the defendant on• 2/14/25. However:, the deposition o_f" the

defendant has not taken place.

Fir-st, this·courtwill address the telief sought pursuarit to CPLR3126._

Plaintiff moves to strike defendarit, Muhammad. Akhtar's affirmative defenses and

preciud·e ·his testfo1ony at trial and/or ·submitting an

affidavit i"n opposition to a summary

Judgment motion. Based on the foregoing, the court finds that plaintiff's motion to strike and

preclude should be granted.

"While actions should be resolved on the merits, when possible, a court may strike_ an

-answer upon a clear showing thai the defendant~s failure to comply with discqver_y demand or

co,.ordered discovery was. the res!Jlt of willful and ·contumacious conduct." See,Seputveda v, 101

Wbodtuff Avenue Owner, LLC, 16€i AD.3i;f 835, ,89 N.Y.S.3cf 89 (2 nd Dept., 2018), citing; Ozeri v.

Ozeri, 13.S_A.D.3d 838, s.3·9·,_23 N:Y.S.3d 363;.sadoyanv. Castro.102 A.D.3d 666, 667,-957 N.y_;·S·:2d

735; Carabello v. Luria, 49 A.D.3d":679, 853 N.v.s;id 663). A court can infer that a party is acting

willfully and contumacious.ly thn;:iugh the p_arty' s repeated failure to respond to demands 'or to

ciJmpJy With oiscovery. See, Sepulveda v~ 101 Woodruff Avenue Owner, LLC, .166 A.D.3d 835, 89

N.Y.S.3d 89 (2 nd Dept,, 2018),

In oppqsition to plaintiff's motion~ .defendanfs attorney states that although call have

been made to the defendant, and an investigator hired to locate defendant, theyhave not been

able to get in to.uch with defendant. To date; the. defendant has not been located or heard-from.

Th~ def~ndant i·s- required .to demonstrate --a reas·onable ex·cuse for Muhammad Akhtar s failure

to appear for his deposition and a p.dtentially meritorious defense ..In Sepulveda v; 101 Woodruff

Avenue Owner; LLC supra, the court held, without reaching the i_ssu_e of whether the_-.defendant

demonstrated the existence of a ·potentially meritorious defense, that"the·factthc:1 t a defendant

disappeared or made. himself or herself unavail_able is n_ot a basis for d.enying a motion to strike

his· or her answer for·failure ~o· appe·a·r for a deposition.

Next, this court will address plaintiff's motion for summary judgment on the issue of

liability,

lti.s well settled that to grantsumrnary J!,idgment, it must clearly appear that no material

issue··of fact has been presented. See, Grassitk v.Hicksvil/e Union Free-Schoo/District, 231. kD.2d

604, 647 N.V.S.2d _973 (2 nd Dept., i996). ,iWhere the moving party h'aS demonstrated its

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NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 05/23/2025

:entitlement to- summary judgment, the. party opposing the motion must demonstrate. by

admissible evidence the existence of a factual issue requiring the trial of the action.'1 S~e,

Zuckerman v. City of New-York, 49 N.v.2·c1. 557, 427N_.v.s~2d-595 (1980). The papers-s1.1bmitted in

the context ofthe.summaryju dgmerit niotionarevieWed in the light most favorableto the party

opposing the motion. See, Marine Midland Bank, N.A. v. Dino v. Attle'sAutornatic Transmission

Co.••16_8 A.D;2d 610 (2nd- Dept., 1990). lf.the·prima-fade showingha·s been met, the burden then

shifts fo the-opposing.party to present sufficient.evidence to establish the existence of material

issues of fact requiring a trial. See,._ CPLR. 3212[b]; Alvarez. v. Prospect Hosp., 68 N.Y.2d 320, -~08

N.Y.S.2d -9°23 (1986).

A rear-.enci collision with- a stopped or stopping vehicle creates a prima facie cas.e of

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negligence with respect to the operator ·of the rearmost vehicle:, thereby requiring th;:it operator

to rebut the infe,rence of negligence by providing_ a non-negligent explanation for ·the collision."

See, Edgerton v...cityof.New York; l60A.D,3d 809,·810, 74 N,Y;S.3d.617.

The court finds that the plaintiff has established his. primafade entitlement to Judgment

as a matter of law on the iss1,1e of liabili,y aga_inst thE! defenda_nt. The plaintiff's .depqsiti.Qn

testimony and a'certified police accident n:iporf de"nionstrated that the plaintiff's vehicle was

slowing down when .it -was ,struck in the. rear by defend_ant's vehicle. A driver of

a vehide·-approachihg ancithervehiclefr om the rear 1s required to. maint~rn a reasonably:-safe

distance and rate: ofspeed under prevailing conditions to avoid i;:pllidingw1th the other vehicle.

See, Fischetti v. Simonovsky.,_;227:A.D.3d 67.0, 671,210 N.Y.S..3d 459,.quotingOrdo nez v. Lee; 177

A.D.3d 756,757, 110 N.Y.53d 3~~; see VE!hicle and Traffic law§ 1129[aJ),

Defendant has f~iled to raise a tri~ble issue of fact regarding a non-n.efgligent explanation

for the· rear-end ·collision.

A plaintiff is no- longer required to show freedom from compari;ltive fault .in order to

establish his or her prima facie entitlement to judgment ·as a matter of law on th·e issue of a

defendant1 sliabilitY (see, Rodriquez V. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898; Merino v.·

Tessel, ·166 A.D;Sd-760 1 87 N.Y.S-.3d 554). A driver of a vehicle approaching .another··vehicle. from

the rE,!ar·is· required to ma.intaln a reasonab.ly safe distance· and rate of speed under the prevc1ilihg

cohditionsto avoid colliding with the other vehicle, See, Vehicle and Traffic Law§ 1129{al.

Due to defenciant'·s failure- to provide a non-negligent explanatio"n of the atciderit~ the

plaintiff established that the defendant driver was the sole proximate cause of the accident which

w.arra.rits d_ismissa_l of the -defendant's c!ffirmative· defens.e of comparative fault. See,

Ya"waqyehtsdg v. Safeway Cdnstn.ictfr::m Enterprise {LC, 225 A.D.3d 827; 207 N.Y.5.3d 608 (2 nd

Dept., 2024), where the court held that defendant driver's explanation for stri_kingthe plaintiff's

vehi~le in the rear, to. wit, a sudden· stop, was: insufficient tq· raise a triable-issue of-fact as to

defendant's negligence or whether the plaintiffs actions contributed to the happening of the

acci~ent. ln the case at bar,_there i_s oo explc!nation.fromthe,d.efendant. as to how the accident

occurred nor" as to how plaintiff's ··actions contributed. to the accident. Although the. is.sue of

comparative fault generally presents a question of fact, that issue should be su_bmitted to a jury

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FILED: KINGS COUNTY CLERK 05/23/2025 01:54 PM INDEX NO. 524142/2018

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"only where there is a triable issue of fact as to whether the frontmost driver also operated his

or her vehicle in a negligent manner. See, Clarke v. Phillips, 112 A.D.3d 872, 978 N.Y.S.2d 281

(2 nd Dept., 2013), citing, Gutierrez v. Trillium USA LLC., 111 A.D.3d 669, 974 N.Y.S.2d 563 (2 nd

Dept., 2013).

Based upon the foregoing, it is hereby

ORDERED that the plaintiffs motion is hereby granted in the entirety and plaintiff is

granted summary judgment on the issue of liability, and it is further

ORDERED that the defendant's affirmative defenses of contributory negligence, culpable

conduct, assumption of risk, emergency situation and failure to wear a seatbelt are hereby

stricken, and it is further

ORDERED that the defendant, Muhammad Akhtar is precluded from offering testimony

at the time of trial unless he has complied with discovery orders requiring defendant to appear

for a deposition, and it is further

ORDERED that all discovery issues are to be heard by the Central Compliance Part before

the Hon. Leon Ruchelsman.

This constitutes the order of this court.

Dated: Brooklyn, New York

May 12, 2025

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