Shaw v. Rosha Enters., Inc., 354 CA 14-01198

• Court: New York Supreme Court Appellate Division
• Citation: 12 N.Y.S.3d 441,2015 N.Y. Slip Op. 05305,129 A.D.3d 1574
• Docket Number: 354 CA 14-01198
• Parties: Theodore J. SHAW, Lanette Shaw and Theodore James Shaw, Doing Business as Coliseum, Plaintiffs–Respondents, v. ROSHA ENTERPRISES, INC., Defendant–Appellant.
• Decision Date: 19 June 2015

129 A.D.3d 1574
12 N.Y.S.3d 441
2015 N.Y. Slip Op. 05305

Theodore J. SHAW, Lanette Shaw and Theodore James Shaw, Doing Business as Coliseum, Plaintiffs–Respondents
v.
ROSHA ENTERPRISES, INC., Defendant–Appellant.

354 CA 14-01198

Supreme Court, Appellate Division, Fourth Department, New York.

June 19, 2015.

12 N.Y.S.3d 442

Hurwitz & Fine, P.C., Buffalo (Michael F. Perley of Counsel), for Defendant–Appellant.

Walsh, Roberts & Grace, Buffalo (Keith N. Bond of Counsel), for Plaintiffs–Respondents.

PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.

Opinion

MEMORANDUM:

129 A.D.3d 1574

Plaintiffs commenced this action seeking monetary damages after a tractor-trailer owned by defendant and permissively operated by its employee crashed into a building that plaintiffs owned and operated as a roller skating rink. Following the collision, the building was engulfed in a fire and sustained significant damage.

12 N.Y.S.3d 443

Plaintiffs have been directed by the Town of Genesee to demolish the building on the ground that, in its current condition, the “building poses a threat to public safety.”

Plaintiffs moved for partial summary judgment on the issue of liability. Defendant opposed that motion and cross-moved for

129 A.D.3d 1575

summary judgment seeking, inter alia, to limit damages to the market value of the property before the accident and to dismiss plaintiffs' claim for demolition costs. Supreme Court granted plaintiffs' motion and denied defendant's cross motion in part. We conclude that the court erred in granting plaintiffs' motion, and we therefore modify the order accordingly.

It is undisputed that the damage to plaintiffs' building was caused by the accident, but we nevertheless conclude that plaintiffs failed to meet their initial burden of establishing as a matter of law that the collision was caused by the negligence of defendant's employee (hereafter, driver) (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Aside from a verified bill of particulars and an amended verified bill of particulars, neither of which contains evidence in admissible form related to the circumstances of the accident, the only other evidence submitted by plaintiffs related to the accident was a police accident report. “Although a police report generally is admissible as a business record ..., statements contained in the report concerning the cause of an accident constitute inadmissible hearsay unless the reporting officer witnessed the accident ..., the reporting officer is qualified as an expert ..., or the statements meet some other exception to the hearsay rule” (Huff v. Rodriguez, 45 A.D.3d 1430, 1432, 846 N.Y.S.2d 841 ; see Brady v. Casilio, 93 A.D.3d 1190, 1191, 940 N.Y.S.2d 396 ). Inasmuch as the reporting officer did not witness the accident and was not qualified as an expert, the statements contained in the report, to be admissible, must fall within an exception to the hearsay rule. Plaintiffs failed to establish that the statements contained in the police report concerning the cause of the accident fall within such an exception, and thus the cause of the accident is a matter for speculation, which is insufficient to establish as a matter of law that the driver was negligent.

Even if we were to consider the inadmissible statements contained within the police accident report, we would nevertheless conclude that they raise triable issues of fact whether the driver, who has since passed away from unrelated causes, was negligent. Immediately after the accident, the driver informed the reporting officer that he “swerved to the left to avoid an unknown object in [the] roadway.” In our view, that statement raises triable issues of fact on the applicability of the emergency doctrine and the driver's purported negligence (see Fitz–Gerald v. Rich, 251 A.D.2d 1017, 1017–1018, 674 N.Y.S.2d 232 ; see also Ferris v. Grogan, 84 A.D.3d 1571, 1572, 922 N.Y.S.2d 634, lv. denied 17 N.Y.3d 709, 2011 WL 4089806 ; Mazzarella v. McVeigh, 283 A.D.2d 557, 557, 725 N.Y.S.2d 70 ; Lanza v. Wells, 99 A.D.2d 506, 506, 470 N.Y.S.2d 676 ). Contrary to

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plaintiffs' contention, this is not a situation in which defendant has opposed a motion for summary judgment by relying on hearsay (cf. Weinstein v. Nicolosi, 117 A.D.3d 1036, 1037, 986 N.Y.S.2d 527 ; Candela v. City of New York, 8 A.D.3d 45, 47, 778 N.Y.S.2d 31 ; Sunfirst Fed. Credit Union v. Empire Ins. Co./All City Ins. Co., 239 A.D.2d 894, 894–895, 659 N.Y.S.2d 656 ). Rather, this is a situation in which plaintiffs, in support of their own motion, submitted hearsay statements raising a triable issue of fact and, in effect, “adopted [those statements] as accurate” (Vetrano v.

12 N.Y.S.3d 444

J. Kokolakis Contr., Inc., 100 A.D.3d 984, 986, 954 N.Y.S.2d 646 ; see also Carey v. Five Bros., Inc., 106 A.D.3d 938, 939–940, 966 N.Y.S.2d 153 ).

In their reply papers, plaintiffs submitted evidence that, years before the motion, the driver had pleaded guilty to a change lane hazard (see Vehicle and Traffic Law § 1128[d] ) with respect to the accident. They also submitted portions of the deposition from a police officer who responded to the scene of the accident and...