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Lettuce Cab Corp. v. Neptune Mach., Inc.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 1, 2015
2015 N.Y. Slip Op. 50686 (N.Y. App. Term 2015)

Opinion

2013-2730 Q C

05-01-2015

Lettuce Cab Corp., Appellant, v. Neptune Machine, Inc. and UZET S. MORRIS, Respondents.


PRESENT: : , WESTON and ALIOTTA, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered November 4, 2013. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover for property damage resulting from a motor vehicle accident, plaintiff moved for summary judgment on the issue of liability. In support of the motion, plaintiff submitted, among other things, an affidavit by Mrinal K. Sur, the individual who had been driving plaintiff's vehicle at the time of the accident, and a police accident report (MV-104 AN) that had been completed by the police officer who had responded to the scene of the accident. Plaintiff appeals from an order of the Civil Court entered November 4, 2013 which denied plaintiff's motion for summary judgment on the ground that plaintiff had failed to establish its prima facie entitlement to judgment as a matter of law.

"To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent but that the plaintiff was free from comparative fault" (Ramos v Bartis, 112 AD3d 804, 804 [2013]; see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Farruggio v Lavender, 123 AD3d 875 [2014]; Singh v Doo Jae Lee, 76 AD3d 555 [2010]). Plaintiff did not meet that burden.

While, in certain limited circumstances, a police accident report may be admissible into evidence under the business records exception to the hearsay rule (see e.g. Noakes v Rosa, 54 AD3d 317, 318 [2008]), the police officer's accident report submitted by plaintiff in support of its motion constituted inadmissible hearsay, since the report was not certified as a business record (see CPLR 4518 [a]; Hernandez v Tepan, 92 AD3d 721 [2012]). Moreover, the statements made therein regarding the circumstances of the accident, which statements were attributable to the operators of the vehicles, were self-serving, and did not fall within any exception to the rule against hearsay (see Hazzard v Burrowes, 95 AD3d 829 [2012]). Furthermore, the statement by Sur in his affidavit that he "was free from any negligence in this accident" was conclusory and, without more, did not establish, as a matter of law, that he was free from any comparative negligence (see Gardella v Esposito Foods, Inc., 80 AD3d 660 [2011]). As plaintiff did not sustain its prima facie burden, the Civil Court properly denied plaintiff's motion for summary judgment.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: May 01, 2015


Summaries of

Lettuce Cab Corp. v. Neptune Mach., Inc.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 1, 2015
2015 N.Y. Slip Op. 50686 (N.Y. App. Term 2015)
Case details for

Lettuce Cab Corp. v. Neptune Mach., Inc.

Case Details

Full title:Lettuce Cab Corp., Appellant, v. Neptune Machine, Inc. and UZET S. MORRIS…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: May 1, 2015

Citations

2015 N.Y. Slip Op. 50686 (N.Y. App. Term 2015)
17 N.Y.S.3d 383