Kajoshaj v. Greenspan

• Decision Date: 18 May 1982
• Citation: Kajoshaj v. Greenspan, 450 N.Y.S.2d 311, 88 A.D.2d 538 (N.Y. App. Div. 1982)
• Parties: Shaban KAJOSHAJ, Plaintiff-Appellant, v. Clifford GREENSPAN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 311

450 N.Y.S.2d 311

88 A.D.2d 538

Shaban KAJOSHAJ, Plaintiff-Appellant, v. Clifford GREENSPAN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 18, 1982.

A. A. Bohm, New York City, for plaintiff-appellant.

C. F. Brady, Baldwin, for defendant-respondent.

Before KUPFERMAN, J. P., and LUPIANO, BLOOM, FEIN and MILONAS, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County, entered August 11, 1980, in favor of defendant, after a jury trial, reversed on the law and in the exercise of discretion, with costs and disbursements of this appeal to abide the event, and the matter remanded for a new trial.

Plaintiff-appellant Shaban Kajoshaj commenced an action for personal injuries sustained by him while he was a passenger on a motorcycle owned and operated by Rifat Aksabanaj, which was involved in a collision at Cortelyou Road and East 7th Street in Brooklyn with a car owned and operated by defendant-respondent Clifford Greenspan. After a jury trial on the matter lasting from January 2 to January 9, 1980, the jury returned a verdict in favor of defendant. On appeal, plaintiff contends, inter alia, that the court committed reversible error in excluding the testimony of the police officer who investigated the accident and who prepared and signed the accident report.

A police accident report made by a police officer who was not an eyewitness containing hearsay statements regarding the ultimate issues of fact may not be admitted into evidence for the purpose of establishing the cause of the accident in question. (Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184). However, in the instant case, the court, after conducting a voir dire of the officer in the absence of the jury, refused to allow the plaintiff to call him as a witness. While it is true that the police officer may not have had any personal knowledge with respect to statements made to him at the scene of the accident, his testimony would have been both relevant and probative as to the position of the vehicles when he arrived, the extent and location of damage sustained by the two vehicles, the physical description of the intersection and adjacent area, the presence or absence of witnesses, and other circumstances surrounding the accident. In Murray v. Donlan, supra, the police officer had been called by the plaintiffs, but the validity of his testifying was never at issue, merely the admissibility of the accident report itself. Clearly, it is...