Jacqueline Memenza, Appellant, v Alfred R. Cole et al., Respondents.
Supreme Court of the State of New York, Appellate Division
2015
16 N.Y.S.3d 287
In an action to recover damages for personal injuries, the
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for a new trial before a different Justice.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she was struck by a motor vehicle owned by the defendant Rolanda Butler and operated by the defendant Alfred R. Cole. At a jury trial, the plaintiff testified that she was struck by the subject vehicle while she was walking across a street within a pedestrian crosswalk with the light in her favor. However, Cole testified that the plaintiff was riding a bicycle at the time of the accident and that the accident occurred after she suddenly emerged from between parked vehicles in an attempt to cross the street in the middle of the block.
Over the plaintiff‘s objection, the defendants were permitted to introduce into evidence a redacted police accident report which indicated, among other things, that the plaintiff was riding a bicycle at the time of the accident and that the accident occurred in the middle of the block. The police officer who prepared the accident report testified at trial that he did not have any independent recollection of his investigation of the subject accident, he could not recall whether he saw a bicycle at the scene after the accident, he could not recall the basis for identifying the location of the accident on the accident report, and he could not recall the source of any of the information that he set forth in the accident report.
The jury returned a verdict finding that Cole was not negligent, and the court thereafter entered a judgment in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals from the judgment. We reverse and remit the matter for a new trial.
“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule” (Siemucha v Garrison, 111 AD3d 1398, 1401 [2013]; see Murray v Donlan, 77 AD2d 337, 342 [1980]). Pursuant to
Here, the record was insufficient to demonstrate that the disputed information contained in the redacted accident report was derived from the personal observations of the police officer, who, it is uncontested, did not witness the subject accident (see Sanchez v Steenson, 101 AD3d 982, 983 [2012]; Huff v Rodriguez, 45 AD3d 1430, 1432 [2007]; Murray v Donlan, 77 AD2d at 346). The police officer, who had no personal recollection of his investigation after the subject accident, was unable to testify as to the source of the information contained in the accident report. Since the source of the information contained in the redacted accident report was not identifiable, it was error to admit it into evidence, inasmuch as it could not be established whether the source of the information had a duty to make the statement or whether some other hearsay exception applied (see Matter of Chu Man Woo v Qiong Yun Xi, 106 AD3d at 819; Noakes v Rosa, 54 AD3d 317, 318 [2008]; Almestica v Colon, 304 AD2d 508, 509 [2003]; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d at 396; Gagliano v Vaccaro, 97 AD2d 430, 431 [1983]; Murray v Donlan, 77 AD2d at 346-347). The error in admitting the redacted police accident report
Since a new trial is required, we do not reach the plaintiff‘s remaining contentions advanced as alternative grounds for reversal of the judgment (see Cathey v Gartner, 15 AD3d 435, 436 [2005]; Tsachalis v City of Mount Vernon, 293 AD2d 525, 526 [2002]). Mastro, J.P., Leventhal, Roman and Miller, JJ., concur.