4518(a)September 25, 2020

Double hearsay

“In this case, even without the police accident report, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through his own affidavit, which established that Blackman was negligent in striking the plaintiff’s vehicle while it was stopped and waiting to make a right turn (see Montalvo v Cedeno, 170 AD3d 1166, 1167; Martinez v Allen, 163 AD3d 951, 952). However, in opposition, the defendants raised a triable issue of fact as to Blackman’s negligence, through the submission of, inter alia, Blackman’s affidavit, in which he claimed that the plaintiff’s vehicle was double-parked to the right side of his vehicle, and that “[a]s I attempted to pass the [plaintiff’s vehicle], the [p]laintiff . . . suddenly moved forward and cut me off to get in front of my vehicle in order make a right turn” (see Ortiz v Hub Truck Rental Corp., 82 AD3d 725, 727; Reitz v Seagate Trucking, Inc., 71 AD3d 975, 976).

Since the uncertified police accident report was inadmissible, we do not reach the [*2]plaintiff’s contention that Blackman’s affidavit should be disregarded as a feigned attempt to avoid the consequences of the admission he purportedly made to the police officer who prepared the police accident report (see generally Abramov v Miral Corp., 24 AD3d 397, 398).”

The problem I have with this case is that oftentimes, the DMV does take possession of local police reports. This makes the certification process difficult. I also do not see why the reports can be entered subject to a challenge from the opponent alleging on affidavit that the facts in the report are not true. This is just silliness and typical New York form over substance nonsense.

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