Toll v. State

• Decision Date: 29 April 1969
• Docket Number: No. 48148,48148
• Citation: 299 N.Y.S.2d 589,32 A.D.2d 47
• Parties: George H. TOLL, Appellant, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 589

299 N.Y.S.2d 589

32 A.D.2d 47

George H. TOLL, Appellant, v. STATE of New York, Respondent.

Claim No. 48148.

Supreme Court, Appellate Division, Third Department.

April 29, 1969.

Segan, Culhane & Cembalest, New York City (Benjamin J. Siff, New York City, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch, Albany, and Levinson, Jenkins & Cassidy, Newburgh, of counsel), for respondent.

Before GIBSON, P.J., and REYNOLDS, AULISI, STALEY and COOKE, JJ.

COOKE, Justice.

This is an appeal from a judgment entered May 13, 1968, upon a decision of the Court of Claims, dismissing appellant's claim for personal injuries, following a trial on the issue of liability.

While it was snowing heavily and when visibility was poor, claimant, operating his automobile in the third or inside lane of the westbound portion of the six-lane Cross-Westchester Expressway, came in contact with the State's truck, in the same lane and on a snow plowing mission shortly after midnight on March 7, 1967. Sharp issues arose on trial, claimant testifying that the truck was stationary and without lights when hit, with the State's driver swearing it was moving at 20--25 miles per hour with two headlights, a revolving amber dome light, two regular taillights and two red flashers all operating.

The report of the State trooper, who investigated but did not witness the accident, and the accident report of the snow plow operator, made 15 days after the event and filed with the Department of Public Works, were admitted over objections. Appellant contends that the former was improperly received because of its conclusional content and its authorship by an officer who did not witness the accident, and the latter because of not being prepared within a reasonable time after the occurrence.

Subdivision (a) of CPLR 4518 provides for the introduction into evidence of a record made in the regular course of any business, where it was the regular course of such business to make it, and it was made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. In Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), the exclusion of a police report was upheld and the Court of Appeals read into the then existing statute a requirement, not expressly found in it, that, to be admissible, the person making the police report be the witness or that the person supplying the information to the entrant be under a business duty to do so (p. 128). (Cf. Cox v. State of New York, 3 N.Y.2d 693, 699, 171 N.Y.S.2d 818, 822, 148 N.E.2d 879, 882 (1958); Trbovich v. Burke, 234 App.Div. 384, 255 N.Y.S.2d 100 (1932)). Then, in Kelly v. Wasserman, 5 N.Y.2d 425, 185 N.Y.S.2d 538, 158 N.E.2d 241 (1959), in allowing the receipt of a record of the Welfare Department reciting statements of defendant, it appeared that the requirement that the informant be under a business duty to impart the information was abandoned. (Cf. Gutin v. Frank Mascali & Sons, 11 N.Y.2d 97, 99, 226 N.Y.S.2d 434, 435, 181 N.E.2d 449, 450 (1962)). In Zaulich v. Thompkins Sq. Holding Co., 10 A.D.2d 492, 200 N.Y.S.2d 550 (1st Dept. 1960), where plaintiff's at trial version of an accident was at variance with that given by him at the scene to a policeman and then recorded in the police report, the report was held to be admissible as a record made in the regular course of business and that it was, in any event, competent evidence to rebut the inference by plaintiff's counsel that the patrolman's testimony was a recent fabrication. In Chemical Leaman Tank Lines v. Stevens, 21 A.D.2d 556, 251 N.Y.S.2d 240 (3d Dept. 1964), a Deputy Sheriff's report containing defendant's description of an accident, which was at variance with that related by her on trial, was received, it being held that the report was admissible as a business record and that the statements to the Deputy were admissible as admissions of a party.

It is important that these decisions be reconciled and we adopt the following as a workable guide regarding the admission of police officer reports in accident cases. CPLR 4518(a) permits a police report to be admitted as proof of the facts recorded therein if (1) the entrant of those facts was the witness, or (2) the person giving the entrant the information was under a business duty to relate the facts to the entrant (Johnson v. Lutz, Supra). If neither of these two requisites is satisfied but the report recites a statement of an outsider, the record may be admitted (under Kelly v. Wasserman, Supra), to prove that the statement recorded therein was made by the outsider (even though the main facts set forth in the business record are hearsay and excludable pursuant to Johnson) and, then, the facts recited in the statement may be proven by the business record if the statement qualifies as a hearsay exception, e.g., an admission, as in Kelly and Chemical Leaman. (Barker, Admissibility of Investigational Reports Under Business Records Statutes, 33 Albany L.Rev. 251; Prince, Evidence, 16 Syracuse L.Rev. 459--460; Prince, The Hearsay Rule, Practising Law Institute, Litigation Series, Trial Evidence, ...