Initial showing at a framed issue hearing: Existence of other vehicle and coverage at the time of the incident
“Infinity contends, among other things, that the petitioner failed to submit competent evidence to meet its initial burden of identifying the alleged offending vehicle and showing that it was, in fact, insured at the time of the accident. Contrary to the petitioner’s contention, Infinity may raise that issue as an alternative ground for affirmance”
(1)”Here, [*2]to meet its initial burden, the petitioner was required to identify the alleged offending vehicle and show that it was, in fact, insured at the time of the accident”
(2) “At the hearing, Willis testified that, at the scene of the accident, the operator of the alleged offending vehicle, Thomas, gave him the telephone number for Thomas’s insurance carrier. Willis wrote that information, along with other information relating to the identity of the vehicle, on a piece of paper. The next day, Willis called the number given by Thomas and spoke with an unnamed insurance agent who gave him Thomas’s insurance information. Willis then wrote that information on a separate piece of paper.”
(3) “Ten days after the accident, Willis used both pieces of paper to prepare a MV-104 motor vehicle accident report. The MV-104 accident report included the name and address of the driver of the alleged offending vehicle, but did not include any identifying information about the vehicle itself, including its license plate number, state of registration, make, model, or year. The MV-104 accident report indicated that the alleged offending vehicle was insured by Esurance, but it is undisputed that the insurance policy number shown therein correlated with an Infinity policy.”
(4) “Contrary to the petitioner’s contention, it failed to make an evidentiary showing that the MV-104 accident report was admissible as a memorandum of a past recollection (see People v Taylor, 80 NY2d 1, 8). “The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” (id. at 8). “[A] witness who verifies the correctness of the facts recorded must have had personal knowledge of the facts in the first instance” (People v Fields, 151 AD2d 598, 600). Since Willis did not have personal knowledge of Thomas’s insurance information in the first instance, the petitioner may not rely upon the portion of the MV-104 accident report containing that insurance information. Moreover, the information on the MV-104 accident report relating to the alleged offending vehicle and its insurance was derived from pieces of paper that were not produced at the hearing.[A] memorandum not in its nature original evidence of the facts recorded, and not verified by the party who made the original and knew the facts, would open the door to mistake, uncertainty, and fraud'” (People v Taylor, 80 NY2d at 9, quoting Peck v Valentine, 94 NY 569, 573). Since the MV-104 accident report did not meet the criteria for admissibility as a memorandum of a past recollection, the Supreme Court erred in considering the MV-104 accident report as proof of identification of the alleged offending vehicle and that it was, in fact, insured at the time of the accident.”
