Opinion
1424 CA 17–01162
02-02-2018
John CHILINSKI, Plaintiff–Respondent, v. Deborah MALONEY and James Maloney, Defendants–Appellants.
LAW OFFICES OF THERESA J. PULEO, SYRACUSE (MICHELLE M. DAVOLI OF COUNSEL), FOR DEFENDANTS–APPELLANTS. WEISBERG & ZUKHER, PLLC, SYRACUSE (DAVID E. ZUKHER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
LAW OFFICES OF THERESA J. PULEO, SYRACUSE (MICHELLE M. DAVOLI OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
WEISBERG & ZUKHER, PLLC, SYRACUSE (DAVID E. ZUKHER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:In this action seeking damages for personal injuries that plaintiff allegedly sustained as the result of a collision between the bicycle he was riding and a motor vehicle driven by Deborah Maloney (defendant) and owned by defendant James Maloney, defendants appeal from an order denying their motion for summary judgment dismissing the complaint. We affirm.Defendants' motion and supporting papers demonstrate that they were actually seeking a determination that plaintiff's negligence was the sole proximate cause of the accident and that defendant was not comparatively negligent. We conclude that defendants failed to meet their initial burden of establishing as a matter of law that plaintiff's negligence was the sole proximate cause of the accident.
Initially, we reject the contentions of both parties to the extent that they are based on the information contained in a police report submitted in support of and in opposition to the motion. Although "reports of police officers made upon their own observation and while carrying out their police duties are generally admissible in evidence" ( Yeargans v. Yeargans, 24 A.D.2d 280, 282, 265 N.Y.S.2d 562 [1st Dept. 1965] ; see Szymanski v. Robinson, 234 A.D.2d 992, 992, 651 N.Y.S.2d 826 [4th Dept. 1996] ), the report in this case was inadmissible because it was "not authenticated" and, "[b]ecause the report was not submitted in evidentiary form, it should not have been considered on the summary judgment motion" ( Szymanski, 234 A.D.2d at 992, 651 N.Y.S.2d 826 ; see Bush v. Kovacevic, 140 A.D.3d 1651, 1654, 33 N.Y.S.3d 623 [4th Dept. 2016] ). Here, as in Szymanski, the parties failed to "provide[ ] an acceptable excuse" for failing to tender the evidence in admissible form ( 234 A.D.2d at 992, 651 N.Y.S.2d 826 ; see generally Grasso v. Angerami, 79 N.Y.2d 813, 814–815, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991] ).
With respect to the merits, " ‘[w]hether a plaintiff [or defendant] is comparatively negligent is almost invariably a question of fact and is for the jury to determine in all but the clearest cases' " ( Yondt v. Boulevard Mall Co., 306 A.D.2d 884, 884, 762 N.Y.S.2d 734 [4th Dept. 2003] ). In support of their motion, defendants submitted the deposition testimony of defendant, which raised a question of fact regarding her attentiveness as she drove her vehicle (see Spicola v. Piracci, 2 A.D.3d 1368, 1369, 768 N.Y.S.2d 867 [4th Dept. 2003] ). It is well settled that every driver of a motor vehicle has "the ‘common-law duty to see that which he [or she] should have seen ... through the proper use of his [or her] senses' " ( Sauter v. Calabretta, 90 A.D.3d 1702, 1703, 936 N.Y.S.2d 469 [4th Dept. 2011] ), and that "a motorist is required to keep a reasonably vigilant lookout for bicyclists, ... and to operate the vehicle with reasonable care to avoid colliding with anyone on the road" ( Palma v. Sherman, 55 A.D.3d 891, 891, 867 N.Y.S.2d 111 [2d Dept. 2008] ). Here, the evidence submitted by defendants established that defendant had an unobstructed view of the street as plaintiff's bicycle approached her vehicle, yet she failed to see him or his bicycle prior to the collision. Thus, we conclude that defendants "failed to establish that there was nothing [defendant] could do to avoid the accident and therefore failed to establish that she was free of comparative fault" ( Jackson v. City of Buffalo, 144 A.D.3d 1555, 1556, 40 N.Y.S.3d 827 [4th Dept. 2016] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.