The Movant's Own Evidence Problem: NY Motor Vehicle Liability MSJ Failures

In motor vehicle tort cases, liability summary judgment motions regularly fail not because of what the opposition submits, but because of what the movant's own papers reveal. The movant's submissions (deposition transcripts, medical records, police reports, affidavits) sometimes contain the contradictions, omissions, and evidentiary gaps that doom the motion. Recent New York decisions illustrate how courts have denied liability motions based entirely on deficiencies in the movant's papers, applying the familiar rule that when a movant fails to meet the prima facie burden, the motion must be denied "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

This article examines several categories of self-inflicted failure in liability summary judgment motions, drawn from 2024 and 2025 caselaw. Most involve plaintiff motions, but the same principles apply when defendants move for summary judgment, as one of the cases below demonstrates.

When the Movant's Own Exhibits Tell a Different Story

A movant's summary judgment papers must present a consistent, coherent narrative. When the movant's own exhibits introduce conflicting accounts of the accident, the motion fails at the prima facie stage.

In Franklyn v Lamalfa (2d Dept 2025), a chain-reaction collision on Kings County roads, the middle vehicle (Lamalfa) moved for summary judgment, arguing that it was properly stopped behind the lead vehicle when it was struck from behind and propelled forward. But the movant's own papers included the deposition transcript of the rear driver, Celestin, whose testimony told a different story. Celestin testified that the middle vehicle stopped suddenly and that her vehicle skidded forward into it due to slippery road conditions. The Second Department held that this testimony "conflicted with Lamalfa's account of how the incident occurred," and because the movant's submissions "failed to eliminate triable issues of fact," the motion was denied without any need to evaluate the opposition.

The principle at work here extends well beyond chain collisions. Whenever a plaintiff moves for summary judgment and attaches deposition transcripts, police reports, or other documentary exhibits, all of that material becomes part of the movant's own submission. If any of it raises a factual question about negligence or causation, the prima facie burden is not met.

When the Plaintiff's Own Deposition Exposes Comparative Fault

A plaintiff's deposition testimony, submitted as part of a summary judgment motion, can reveal conduct that raises triable issues of fact about the plaintiff's own negligence.

Hunter v Motor Veh. Acc. Indem. Corp. (4th Dept 2025) involved a pedestrian who alleged she was struck by an unidentified vehicle at 1:30 a.m. She moved for summary judgment on negligence against MVAIC, the indemnity corporation standing in for the absent hit-and-run driver. The plaintiff's motion still failed, based entirely on deficiencies in her own proof.

The Fourth Department identified several problems within the plaintiff's own proof. Her deposition testimony established that she was walking in the street rather than on the available sidewalk, and that she was walking in the same direction as traffic rather than facing it, both potential violations of Vehicle and Traffic Law Section 1156(a) and (b). She was wearing dark clothing in the middle of the night. And her medical records, which she submitted as part of her own motion papers, stated that a car struck her on the right side of her body, contradicting her deposition testimony that the vehicle struck her left shoulder, back, and neck. As the court noted, where a plaintiff has "provided vastly different accounts of the incident," and a factfinder could reasonably determine that she failed to look out for oncoming traffic.

The court also observed a broader point about the difficulty of obtaining summary judgment in cases involving unidentified drivers: "Only in the most unusual or extraordinary case" involving an unidentified driver will "summary judgment be warranted in favor of a plaintiff." But the case's significance is not limited to MVAIC litigation. It demonstrates that medical records submitted by the movant are fair game, and that inconsistencies between deposition testimony and treatment records can be sufficient on their own to defeat a motion.

When the Affidavit Says Too Little

Rear-end collision cases are often considered the strongest fact pattern for a plaintiff's liability motion. The inference of negligence attaches to the rear driver, and the burden shifts to that driver to provide a non-negligent explanation. But as Oliva v Perez-Gomez (Sup. Ct. Kings County 2024) demonstrates, even this favorable posture does not excuse an incomplete showing.

The plaintiff's affidavit contained just two substantive sentences: she stated that she was driving on 38th Street near 4th Avenue in Brooklyn and that she "was stopped for traffic" when the defendant's vehicle "suddenly struck [her] vehicle in the rear." Justice Maslow denied the motion after cataloguing what the affidavit failed to address:

• Which direction plaintiff was traveling (and therefore which side of the intersection the accident occurred on)
• How many lanes of traffic were on the roadway
• Whether the stop was gradual or sudden
• How long she had been stopped before impact
• Why traffic had stopped (red light, an accident, emergency vehicle, or something else)
• Whether her foot was on the brake, and therefore whether her brake lights were illuminated
• The prevailing traffic, weather, and roadway conditions
• How she knew it was the defendant's vehicle that struck her

The court undertook a careful survey of Second Department decisions in rear-end cases, noting that even in the most favorable rulings for plaintiffs, the affidavits at issue had included details like the plaintiff's lane position, the reason for the stop, the duration of the stop, or whether the plaintiff's foot was on the brake. None of these details appeared in the Oliva affidavit.

The decision is notable for how thoroughly it defines the floor for a rear-end affidavit. A plaintiff who simply states "I was stopped and I was hit" may find that, absent more, the prima facie burden is not met.

When Nobody with Personal Knowledge Signs the Papers

Summary judgment motions require proof in admissible form. An attorney's affirmation that is not based on personal knowledge "is of no probative or evidentiary significance" (Warrington v Ryder Truck Rental, Inc., 35 AD3d 455 [2d Dept 2006]). When the person who experienced the accident does not provide a sworn statement, the motion has a foundational gap.

In Scaltrito v Mazzarisi (Sup. Ct. Richmond County 2024), the plaintiffs brought suit as co-executors of the estate of the decedent, who died of cancer before depositions were held. They moved for summary judgment on liability, submitting only two exhibits: the deposition transcript of the defendant and the deposition transcript of one of the co-executor plaintiffs. Neither co-executor had personal knowledge of the accident. The complaint and bill of particulars had been verified only by counsel, not by the decedent or anyone who witnessed the collision.

The court found that the only evidence with any personal knowledge of the accident came from the defendant's own deposition, and that testimony, viewed in the light most favorable to the non-movant, described the contact as "a tap causing a dent" in the decedent's trunk. That characterization, taken at face value under the summary judgment standard, was insufficient to establish the plaintiff's case.

This result underscores a recurrent issue in cases where the injured party is unavailable for deposition (whether due to death, incapacity, or other reasons). Without an affidavit or testimony from someone who actually witnessed the accident, the plaintiff's prima facie showing may rest entirely on the defendant's version of events, which the court must construe favorably to the defendant as the non-movant.

Another trial court decision, Ji Hae Byun v Perez (Sup. Ct. Kings County 2024), illustrates the flip side. There, the plaintiff did submit a proper affidavit with personal knowledge in a rear-end case, and the defense failed to offer any evidence in opposition, not even an affidavit from the defendant driver. Justice Maslow granted the plaintiff's motion, observing that in a two-vehicle accident, "the persons who would be able to provide testimony on a summary judgment motion are the two drivers," and that "the conclusory excuse for not doing so that there needs to be discovery, i.e., a deposition of the movant, is meritless." Taken together, Scaltrito and Ji Hae Byun confirm that courts closely scrutinize whether the right person, someone with firsthand knowledge of the accident, has provided sworn testimony.

When Expert Reports Cannot Overcome Evidentiary Gaps

Expert evidence can supplement a summary judgment submission, but it cannot substitute for competent proof of the underlying facts.

In Kelly v Pedersen (2d Dept 2025), the plaintiff opposed a defendant's summary judgment motion with an expert report alleging that the defendant was driving at excessive speed. The Second Department affirmed the grant of summary judgment to the defendant, finding that the expert report was "conclusory and speculative." Although this case involved a plaintiff opposing (rather than bringing) a motion, the principle applies in both directions: an expert opinion that lacks a factual foundation will not satisfy or preserve a prima facie case.

Similarly, in McNearney v Thompson (Sup. Ct. New York County 2025), a passenger was injured in a two-vehicle collision on the Major Deegan Expressway, and both drivers were named as co-defendants. Each driver blamed the other: Thompson testified he was rear-ended, while Gunnings testified that Thompson attempted to pass him on the right. Neither driver saw the other before the collision. Gunnings moved for summary judgment, submitting an accident reconstruction expert's report and photographs to support his version of events, and Thompson cross-moved for summary judgment on liability. The court denied both motions, holding that the expert's report and photographs could not resolve the credibility questions raised by the conflicting deposition testimony. Questions of witness credibility are for the trier of fact, not for resolution on papers.

Observations for Defense Practice

The cases discussed here share a common thread: in each one, the movant's papers contained the seeds of the motion's failure. The deficiency was not something the opposing party had to prove through its own evidence. It was already present in the record the movant assembled.

For defense attorneys, whether opposing a plaintiff's motion or preparing one of their own, several patterns are worth examining:

Contradictions within the movant's own exhibits. Deposition transcripts, medical records, and police reports submitted by the movant are all part of the evidentiary showing. If any exhibit raises a factual question that conflicts with the movant's narrative, the prima facie burden is not met (Franklyn).

Admissions and statutory violations in the plaintiff's deposition. Plaintiffs who testify about their own conduct at the time of the accident may inadvertently reveal VTL violations or other facts that raise triable issues (Hunter).

Bare-bones affidavits that assume rather than establish key facts. In rear-end cases, an affidavit that merely states "I was stopped and was hit" without describing the surrounding circumstances may fall short of the prima facie standard (Oliva).

Papers verified by counsel rather than a witness with personal knowledge. An attorney's affirmation without personal knowledge of the facts has no probative value. If the only firsthand account in the movant's papers is the defendant's deposition, the motion may fail on the movant's own proof (Scaltrito).

The prima facie burden on summary judgment is a real threshold, not a formality. These cases suggest that careful reading of the movant's own submission is often the most efficient first step, whether you are opposing someone else's motion or reviewing your own before filing.

About This Research

I'm Tommy Eberle, CEO of DocketDrafter. I'm not a lawyer. Here's how this article came together:

• I ran two searches on CourtListener, both filtered to New York appellate and trial courts from January 2024 to present. The first searched for opinions involving "negligence per se" combined with "personal injury" or "motor vehicle" and "summary judgment". The second searched for rear-end collision opinions with "summary judgment".
• I downloaded the results and used Claude Code to organize them by issue, looking for cases where the movant's own papers contained the deficiency that sank the motion.
• I used Claude Code to help draft the article, then manually validated all quotes against the original opinions and added clickable links to every case cited.

If you have comments or want to discuss the research process in detail, email me at tommy@docketdrafter.com.