Almestica v. Colon

• Decision Date: 07 April 2003
• Citation: 757 N.Y.S.2d 336,304 A.D.2d 508
• Court: New York Supreme Court — Appellate Division
• Parties: GLORIA ALMESTICA, Appellant,<BR>v.<BR>MARIE COLON, Respondent, et al., Defendant.

304 A.D.2d 508

757 N.Y.S.2d 336

GLORIA ALMESTICA, Appellant,

v.MARIE COLON, Respondent, et al., Defendant.

Decided April 7, 2003.

Altman, J.P., Florio, H. Miller and Adams, JJ., concur.

Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

The plaintiff was injured when the defendant Marie Colon's vehicle, in which the plaintiff was a passenger, collided in a parking lot with the defendant Delano Dorsaint's vehicle. Before the trial, the plaintiff settled her action against Dorsaint for the full amount of his policy. After trial, the jury returned a verdict in favor of Colon finding that Dorsaint's negligence was the sole proximate cause of the accident.

The Supreme Court permitted the police officer who arrived at the scene shortly after the impact to testify, after referring to his report, as to the location of and damage to the respective vehicles, and to offer his opinion as to the point of impact. The Supreme Court properly permitted this testimony without having the police officer qualify as an expert, since his testimony consisted of observations not requiring any particular expertise (see Schwartz v Rosenthal, 244 AD2d 325 [1997]; Mead v Reilly, 238 AD2d 484 [1997]; Kapinos v Alvarado, 143 AD2d 332 [1988]).

However, in the absence of any evidence that the police officer either witnessed the accident or was qualified to render an opinion as to its cause, the Supreme Court improperly permitted him to assign fault (see Schembre v Atomic Spring & Alignment Co., 281 AD2d 531 [2001]; Dennis v Capital Dist. Transp. Auth., 274 AD2d 802 [2000]; Cleary v City of New York, 234 AD2d 411 [1996]). The police officer's description of the accident was premised upon a notation in his report that stated that Dorsaint's vehicle "was traveling across marked rows in the parking lot." He testified as to having interviewed both drivers as well as an independent witness but did not delineate what each person said. The admission of that portion of the report, which failed to specify the source of the information, and the hearsay testimony derived from it, was therefore improper (see Coughlin v Bartnick, 293 AD2d 509 [2002]; Dennis v Capital Dist. Transp. Auth., supra at 843; Cleary v City of New York, supra at 411, Murray v Donlan, 77 AD2d 337, 346 [1980]).