Opinion
2012-02-14
Noel HERNANDEZ, appellant, v. Julio TEPAN, respondent.
The Sullivan Law Firm, New York, N.Y. (James A. Domini and Timothy M. Sullivan of counsel), for appellant. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
The Sullivan Law Firm, New York, N.Y. (James A. Domini and Timothy M. Sullivan of counsel), for appellant. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 18, 2011, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). As the defendant correctly contends, the police accident report submitted by the plaintiff in support of the plaintiff's motion for summary judgment on the issue of liability constituted inadmissible hearsay, since the report was not certified as a business record ( see CPLR 4518[a]; Johnson v. Lutz, 253 N.Y. 124, 128, 170 N.E. 517; Bailey v. Reid, 82 A.D.3d 809, 810, 918 N.Y.S.2d 364; see also Noakes v. Rosa, 54 A.D.3d 317, 318, 862 N.Y.S.2d 573), and there is no indication that some other hearsay exception applied to the statements contained in the report ( see Bailey v. Reid, 82 A.D.3d at 810, 918 N.Y.S.2d 364; State Farm Mut. Auto. Ins. Co. v. Langan, 18 A.D.3d 860, 862–863, 796 N.Y.S.2d 663; see also Noakes v. Rosa, 54 A.D.3d at 318, 862 N.Y.S.2d 573).
Further, “[t]here can be more than one proximate cause of an accident” ( Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604). Therefore, even if the defendant violated Vehicle and Traffic Law § 1143, as the plaintiff alleges, the plaintiff's affidavit did not establish, as a matter of law, the plaintiff's freedom from comparative negligence ( see Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 914 N.Y.S.2d 678).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability.