Clear Water Psychological Servs. PC v American Tr. Ins. Co.

[*1] Clear Water Psychological Servs. PC v American Tr. Ins. Co. 2016 NY Slip Op 26420 Decided on December 8, 2016 Civil Court Of The City Of New York, Kings County Levine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 8, 2016
Civil Court of the City of New York, Kings County

Clear Water Psychological Services PC, a/a/o Oshane Crooks, Plaintiff(s), -against

against

American Transit Insurance Company, Defendant.



021991/15



Attorneys for Plaintiff

Law Offices of Ilona Finkelshteyn, P.C.

1733 Sheepshead Bay Rd., Suite 11

Brooklyn, NY 11235

Attorneys for Defendant

Law Offices of Daniel J. Tucker

One Metro Tech Center, 7th Floor

Brooklyn, NY 11201
Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Plaintiff's Notice of Motion with Accompanying Affidavits and Exhibits 1

Defendant's Notice of Cross-Motion and Accompanying Affidavits and Exhibits 2

Affirmation in Opposition to Defendant's Motion for Summary Judgment 3

Brief by Defendant 4

Plaintiff Clear Water Psychological Services PC ("plaintiff" or "Clear Water") seeks to recover no fault benefits assigned to it by Oshane Crooks ("assignor") and moves for summary judgment on the grounds that the bills it submitted to American Transit Insurance Company ("defendant" or "American Transit") remain unpaid. Defendant cross-moves for a 90-day stay of the action pending a determination by the Workers' Compensation Board ("Board") as to whether the assignor was acting as an employee at the time of the subject automobile accident which occurred on 11/10/2014, and whether he is entitled to workers' compensation benefits.

At issue is the admissibility of the signed but uncertified Police Accident Report dated 11/10/2014 ("Report"), which indicated that at the time of the accident, the assignor was driving a vehicle with a taxi license plate number and that there were two passengers in the vehicle, to establish that the assignor was acting in the course of his employment. Defendant submits that the Report mandates that the 90-day stay be granted.

Facts stated in a police report are not admissible unless they constitute an exception to the hearsay rule. Memenza v Cole, 131 AD3d 1020, 1021-1022 (2nd Dept. 2015). If the report is based upon the officer's personal observations while carrying out police duties, it is admissible as a business record. Id.; CPLR § 4518 (a); Wynn v Motor Veh. Acc. Indem. Corp., 137 AD3d 779, 780 (2nd Dept. 2016). See also, Bhowmik v Santana, 140 AD3d 460, 461 (1st Dept. 2016) (Police accident report, in which officer recorded his own observations that the plaintiff smelled of alcohol and appeared to be intoxicated, was admissible, was not based on hearsay, and was therefore admissible).

Pursuant to Vehicle & Traffic Law §§ 603 and 604, a police officer who receives a report of an accident resulting in personal injury has a duty to immediately investigate the facts and report the matter to the Commissioner of Motor Vehicles on a form prescribed by the Commissioner within five days after the accident. People v. Quackenbush, 88 NY2d 534, 539 (1996); Bouet v. City of New York, 125 AD3d 539, 540 (1st Dept. 2015). In New York City, the prescribed Police Accident Report ("PAR") is the MV-104AN. See, Police Accident Report Manual, https://dmv.ny.gov/forms/p33Part01.pdf.

In the instant action, P.O. Stephenson filled out this form. The fifth line on the PAR asks for the plate numbers of the vehicles involved in the accident, and the table following line 7 asks for a list of all involved in the accident. As P.O. Stephenson filled out the particulars of the license plate number and the names of the passengers, one can only conclude that his notations were based on his personal observations at the scene of the subject accident.

Although the MV-104AN is signed at the bottom by P.O. Stephenson, it is not certified, and defendant's cross-motion for summary judgment does not contain an affidavit or other sworn evidence from someone with personal knowledge establishing its authenticity or accuracy. CPLR § 4518(c) permits a police report to be admitted as proof of the facts recorded therein only if "they bear a certification or authentication by the head of ... the [police] department ... of the state, or by an employee delegated for that purpose." Since the MV-104AN is not certified, it does not qualify for admission under CPLR § 4518(c). Nationwide Gen. Ins. Co. v Linwood Bates III, 130 AD3d 795, 796 (2nd Dept. 2015); Adobea v Junel, 114 AD3d 818 (2nd Dept. 2014); Cheul Soo Kang v. Violante, 60 AD3d 991 (2nd Dept. 2009).

Although the PAR may not be admitted into evidence in its current form, defendant's motion still presents factual questions regarding the assignor's status as an employee of a taxi base, as plaintiff does not dispute the truthfulness of P.O. Stephenson's observations that the vehicle involved in the subject accident had a taxi license plate. Pursuant to Workers' Compensation Law, §§ 2(3) and (4), the term "employer" includes a person or entity who leases a taxicab, and concomitantly, the term "employee" includes "a driver, operator or lessee who contracts with an owner, operator or lessor for the purpose of operating a taxicab." See, Mihalaris v. UTOG 2-Way Radio, Inc., 299 AD2d 677, 678 (3rd Dept. 2002). The question of the assignor's employment status and his entitlement to benefits under the Workers' Compensation Law ("WCL") must be resolved at a hearing before the Board, which has primary jurisdiction over deciding these matters. Siekkeli v. Mark Mariani, Inc., 119 AD3d 766, 768 (2nd Dept. 2014); Dunn v American Tr. Ins. Co., 71 AD3d 629, 630 (2nd Dept. 2010); Speroni v. Mid-Island Hosp., 222 AD2d 497, 498 (2nd Dept. 1995).

In light of the above, defendant's motion is granted to the extent that this action shall be [*2]stayed for 90 days pending a prompt application to the to determine the applicability of the WCL to plaintiff's claim. This constitutes the Decision/Order of the Court.

DATED: December 8, 2016

_______________________

KATHERINE A. LEVINE

Acting Justice Supreme Court