Hearsay (4518)

CPLR R. 4518 Business records

Steinberg v New York City Tr. Auth., 2011 NY Slip Op 07480 (1st Dept., 2011)

Supreme Court correctly found that, as movant, defendant failed to show that it did not breach a duty to plaintiff. Defendant relied on hearsay testimony and accident reports submitted without an adequate foundation for their admission as business records (see Wen Ying Ji v Rockrose Dev. Corp., 34 AD3d 253, 254 [2006]; compare Buckley v J.A. Jones/GMO, 38 AD3d 461, 462-463 [2007]). In view of the testimony of defendant's foreman that it was necessary to safeguard the tools from theft and that defendant's other employees had seen Williams hovering around them, talking and yelling, it cannot be found as a matter of law that Williams's criminal acts were unforeseeable and therefore a superseding cause of plaintiff's injuries (see Bell v Board of Educ. of City of N.Y., 90 NY2d 944 [1997])

Mallen v Farmingdale Lanes, LLC, 2011 NY Slip Op 08569 (2nd Dept., 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's expert affidavit was speculative and conclusory and, therefore, insufficient to raise a triable issue of fact (see Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632; Pappas v Cherry Cr., Inc., 66 AD3d 658, 659; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558). Further, the plaintiff's contention that incident reports regarding prior accidents raised a triable issue of fact as to whether there was a dangerous condition or whether the defendant had notice of any such condition is speculative, as there was no evidence that those accidents were similar in nature to the plaintiff's accident (see Hyde v County of Rensselaer, 51 NY2d 927, 929; Gjonaj v Otis El. Co., 38 AD3d 384, 385). The plaintiff's reliance upon a statement as to the cause of her accident contained in an incident report is also unavailing, as the report contained hearsay and the plaintiff failed to lay the proper foundation for its admission as a business record (see CPLR 4518[a]; Roldan v New York Univ., 81 AD3d 625, 627; Stock v Otis El. Co., 52 AD3d 816, 817; Daliendo v Johnson, 147 AD2d 312, 321). "Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted" (Stock v Otis El. Co., 52 AD3d at 816-817 [internal quotation marks omitted]). Accordingly, since the hearsay evidence, by itself, was insufficient to raise a triable issue of fact, and the other evidence submitted by the plaintiff in opposition to the defendant's motion also failed to raise a triable issue of fact, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Yant v Mile Sq. Transp., Inc., 2011 NY Slip Op 07913 (1st Dept., 2011)

Plaintiff established his entitlement to judgment as a matter of law by stating that he was injured when defendants' school bus hit the rear of the bus on which he was riding (see Johnson v Phillips, 261 AD2d 269, 271 [1999]). In opposition, defendants raised a triable issue of fact by attaching the complete police accident report, which listed all of the passengers on the buses and did not include plaintiff's name. This document, which was admissible as a business record (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 [2003], lv dismissed in part, denied in part 100 NY2d 636 [2003]), raised the question of whether plaintiff was actually a passenger on the bus (see Perry v City of New York, 44 AD3d 311 [2007]). Accordingly, plaintiff's motion should have been denied and defendants should have been permitted to conduct discovery to determine whether or not plaintiff was indeed a passenger (see CPLR 3212[f]; Bartee v D & S Fire Protection Corp., 79 AD3d 508 [2010]).

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