. The police accident report record relied on by the movants is plainly inadmissible and has not been considered by the Court in making this determination (see CPLR 4518 [c]; Cover v Cohen, 61 NY2d 261, 473 NYS2d 378 [1984]; Cheul SooKong v Viohinte, 60 AD3d 991, 877 NYS2d 354 [2d Dept 2009]); Mooney v Osowiecky, 235 AD2d 603. 651 NYS2d 713 [3d Dept 1997]; Szymanski v Robinson, 234 AD2d 992, 651 NYS2d 826 [4th Dept 1996]; Aetna Cas. & Sur. Co. v Island Transp. Corp., 233 AD2d 157, 649 NYS2d 675 [1st Dept 1996]: Cadieux v D.B. Interiors, 214 AD2d 323, 624 NYS2d 582 [1st Dept 1995]). In addition, it is noted that the four deposition transcripts submitted are certified but not signed, and that the movants have failed to submit proof that the transcripts were forwarded to the witnesses for their review (see CPLR 3116 [a]).
An opening statement, however, "is not the evidentiary equivalent of confronting the [claimant] on cross-examination with a claim of recent fabrication and thus lacks the testimonial element required for the admission of a prior consistent statement" ( People v. Watson, 163 A.D.3d 855, 865, 81 N.Y.S.3d 449 [2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 767, 111 N.E.3d 1123 [2018] ). Further, defendant never relied upon a claim of a recent fabrication by claimant; instead, defendant maintained throughout its case that claimant's explanation of how the stabbing occurred had been false from its inception such that the hearsay exception for a prior consistent statement was not available under the circumstances (seePeople v. McDaniel, 81 N.Y.2d at 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. Davis, 44 N.Y.2d 269, 278, 405 N.Y.S.2d 428, 376 N.E.2d 901 [1978] ; People v. Watson, 163 A.D.3d at 865, 81 N.Y.S.3d 449 ; Mooney v. Osowiecky, 235 A.D.2d 603, 604, 651 N.Y.S.2d 713 [1997] ). Additionally, even assuming that the Court of Claims erred in not admitting claimant's statement to the sheriff's deputy and/or her written statement to police, on the record before us, we find any such error to be harmless, as the proffered evidence would not have had a substantial influence on bringing about a different verdict (see CPLR 2002 ; Nationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1296, 983 N.Y.S.2d 705 [2014], lv denied 24 N.Y.3d 905, 2014 WL 4637016 [2014] ; Braunsdorf v. Haywood, 295 A.D.2d 731, 733, 743 N.Y.S.2d 623 [2002] ; see alsoPeople v. Hamilton, 176 A.D.3d 1505, 1508–1509 [2019], lvs denied 34 NY3d 1126, 1128, 118 N.Y.S.3d 542, 555, 141 N.E.3d 498, 511 [2020]).
Contrary to defendant's arguments, Supreme Court properly considered plaintiffs affidavit inasmuch as it did not contradict her prior deposition testimony ( see DiGrazia v Lemmon, 28 AD3d 926, 927-928, lv denied 7 NY3d 706), and her description of the employees' remedial actions is relevant to the condition and visibility of the ice at the time of the fall ( see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961). Similarly, plaintiffs statements to the ambulance crew and hospital personnel that she had fallen on ice covering defendant's walkway were properly considered as prior consistent statements in response to defendant's assertion that plaintiff recently fabricated her claim that she observed ice at the time of her fall ( see Mooney v Osowiecky, 235 AD2d 603, 604; see also People v McDaniel, 81 NY2d 10, 18; cf. Cuevas v Alexander's, Inc., 23 AD3d 428, 429). In short, viewing the evidence in the light most favorable to plaintiff, we conclude that the foregoing satisfied her burden of establishing material issues of fact regarding the existence of a dangerous condition and defendant's constructive notice thereof ( see Candelario v Watervliet Hous. Auth., 46 AD3d at 1074-1075; Boyko v Limowski, 223 AD2d at 963-964).
at 697; see also Holliday v. Hudson Armored Car Courier Serv., 301 AD2d 392, 396, lv dismissed in part and denied in part 100 NY2d 636). Contrary to defendants' further contention, raised for the first time on appeal, the statement was not admissible as a party admission inasmuch as the statement was not "inconsistent with [defendant's] position on trial" (Prince, Richardson on Evidence § 8-201, at 510 [Farrell 11th ed]). We conclude that the erroneous admission of the written statement is not harmless. Although the content overlapped in part with the second oral statement, to which plaintiffs failed to object, the written statement was verified under the penalty of perjury, and that fact "may well have prejudiced the plaintiff[s'] case by adding undue credence to the testimony of [defendant]" ( Shufelt v. City of New York, 80 AD2d 554, 555). Under the circumstances of this case, we cannot say that the error in admitting that statement had no effect on the outcome of the case ( see Mooney v. Osowiecky, 235 AD2d 603, 604; see also Melendez v. New York City Tr. Auth., 196 AD2d 460, 462). We therefore reverse the judgment, grant the motions, set aside the verdict, reinstate the complaints and grant a new trial.
Although plaintiff surmises that the officer who took information from Cerillo after the accident must have observed the accident, and therefore must be the source of the information in the report, this is nothing more than speculation on plaintiff's part. It is well established that police accident reports are admissible as business records so long as the report is made based upon the officer's personal observations and while carrying out their police duties (see Yeargans v. Yeargans, 24 A.D.2d 280, 282; see also Mooney v. Osowiecky, 235 A.D.2d 603, 604). Conversely, police reports have consistently been held inadmissible where the information contained in the report "came from witnesses not engaged in the police business in the course of which the memorandum was made" (Yeargans v. Yeargans, 24 A.D.2d 280, 282, citing Johnson v. Lutz, 226 A.D. 772, affd 253 N.Y. 124).
Given this evidence that the screws had repeatedly failed in the past and that the grate thereafter had been improperly reattached to the wall, we find ample admissible and credible evidence upon which the jury could have based its conclusion that defendants, in the exercise of reasonable care, knew or should have known of the dangerous condition. Thus, we find the error in improperly admitting hearsay evidence to be harmless inasmuch as the statements were cumulative to other evidence presented at trial (see, Matter of Shane MM. v. Family Children Servs., 280 A.D.2d 699, 702; Warner v. Village of Chatham, 194 A.D.2d 980, 982;Nicolla v. Fasulo, 161 A.D.2d 966, 967-968; Borgo v. Sontag, 98 A.D.2d 786, 788; cf., Mooney v. Osowiecky, 235 A.D.2d 603, 604; Ellis v. Allstate Ins. Co., 97 A.D.2d 970, 970). Defendants next assert that Supreme Court erred in failing to charge the jury that there were no reports of prior accidents.
In this case, a jury verdict of no negligence on the part of defendant would have been against the weight of the evidence if proof of defendant's plea had been presented and no excuse or explanation were offered by defendant. As a new trial is warranted when an error by the court affects the determination of the jury (see, Mooney v. Osowiecky, 235 A.D.2d 603, 604; Dance v. Town of Southampton, 95 A.D.2d 442, 449-450, 453), we find that Supreme Court's exclusion of this evidence warrants a new trial. Mercure, J.P., Carpinello, Mugglin and Lahtinen, JJ., concur.
Plaintiff subsequently commenced this action. Following an earlier trial, wherein a directed verdict was entered in favor of defendants, this Court reversed and ordered a new trial ( Mooney v. Osowiecky, 235 A.D.2d 603). Following a second trial, the jury returned a verdict which found both plaintiff and defendant negligent but that only defendant's negligence was a proximate cause of plaintiffs injuries; plaintiff was awarded $450,000 for past pain and suffering and $275,000 for future pain and suffering.
In addition, "[i]t is well established that police accident reports are admissible as business records so long as the report is made based upon the officer's personal observations and while carrying out their police duties" (Holliday v. Hudson Armored Car & Courier Serv., 301A.D.2d 392 [1st Dept 2003], citing Yeargans v Yeargans, 24 A.D.2d 280, 282 [1st Dept 1965]; see also Mooney v Osowiecky, 235 A.D.2d 603, 604 [3d Dept 1997]). Conversely, police reports have consistently been held inadmissible where the information contained in the report "... came from witnesses not engaged in police business in the course of which the memorandum was made" (Holliday v Hudson Armored Car & Courier Serv., 301 A.D.2d at 392, citing Johnson v Lutz, 226 A.D. 772, 234 NYS 328 [2d Dept 1929], affd 253 NY 124).
In support of his motion, the plaintiff submits the pleadings, the affirmation of his attorney, his sworn affidavit, and a copy of a police accident report, Form MV-104A, regarding this accident. The police accident report record relied on by the plaintiff is plainly inadmissible and has not been considered by the Court in making this determination (see CPLR 4518 [c]; Cover v Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378 [1984]; Cheul Soo Kang v Violante, 60 A.D.3d 991, 877 N.Y.S.2d 354 [2d Dept 2009]; Mooney v Osowiecky, 235 A.D.2d 603, 651 N.Y.S.2d 713 [3d Dept 1997]). In his affidavit, the plaintiff swears that he was the owner and operator of a motor vehicle traveling southbound on Deer Park Avenue on June 8, 2016, that he brought his vehicle to a stop near its intersection with Woods Road because there was a police vehicle approaching said intersection, and that there were two vehicles in front of his that had also stopped to allow the police vehicle to proceed through the intersection.