Fay v Vargas

Fay v Vargas 2009 NY Slip Op 08510 [67 AD3d 568] November 19, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

William J. Fay III, as Administrator of the Estate of Edward A. Fay, Deceased, Appellant,
v
Enrique Vargas, Respondent Appellant.

—[*1] Zeccola & Selinger, LLC, Goshen (John S. Selinger of counsel), for appellant.

Burke, Lipton & Gordon, White Plains (Brian D. Acard of counsel), for respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered June 23, 2008, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The police accident report was inadmissible because it was made by an officer who did not witness the accident and it contains the hearsay, and presumably self-serving, statements of plaintiff's decedent as to the ultimate issue of fact (Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 [2003], lv dismissed in part and denied in part 100 NY2d 636 [2003]; Kajoshaj v Greenspan, 88 AD2d 538, 539 [1982]). The officer's affidavit vouching for the truth of his report does not render admissible the hearsay statements contained in the report. Concur—Andrias, J.P., Sweeny, Nardelli, Catterson and DeGrasse, JJ.