Girgs v Santagata

[*1] Girgs v Santagata 2010 NY Slip Op 50595(U) [27 Misc 3d 128(A)] Decided on April 2, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 2, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1957 Q C.

Antoum T. Girgs, Appellant,

against

Thomas J. Santagata, Defendant, -and- SNAPPLE DISTRIBUTION CORP. and MR. NATURAL, INC., Respondents. THOMAS J. SANTAGATA, SNAPPLE DISTRIBUTION CORP. and MR. NATURAL, INC., Third-Party Plaintiffs, THE CITY OF NEW YORK, Third-Party Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered July 1, 2008. The order denied plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed without costs.

This action to recover for personal injuries arises out of an intersection motor vehicle collision which occurred on April 15, 1994. On that date, a truck owned by defendant Snapple Distribution Corp. (Snapple) and driven by defendant Thomas J. Santagata was traveling southbound on 31st Place in Queens when it collided with a vehicle driven by plaintiff, which [*2]vehicle was traveling westbound on Hunters Point Avenue. Plaintiff alleges that the street upon which Mr. Santagata was driving was controlled by a stop sign, and that Mr. Santagata was speeding and drove into the intersection without stopping at the stop sign. Mr. Santagata passed away, from causes unrelated to the accident, before he was deposed. Thereafter, plaintiff moved for summary judgment on the issue of liability. The Civil Court denied the motion, finding that there were issues of fact precluding summary judgment, including whether the stop sign was visible to Mr. Santagata. The instant appeal ensued.

In support of his motion for summary judgment, plaintiff submitted, among other things, his affidavit and the transcript of his deposition testimony, demonstrating that defendants' vehicle had proceeded into the intersection, which was controlled by a stop sign, and had failed to yield the right of way to plaintiff's approaching vehicle, in violation of Vehicle and Traffic Law § 1142 (a). Plaintiff thereby sustained his burden of making a prima facie showing of his entitlement to summary judgment on the issue of liability (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and the burden shifted to defendants to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

The evidence proffered in opposition to plaintiff's motion included a police accident report, in which the police officer, who had not witnessed the accident, recorded the statements of the drivers as to how the accident had occurred, and also noted that the stop sign was not visible to traffic. While the portion of the police accident report which contained the statements of the drivers was hearsay (see Casey v Tierno, 127 AD2d 727 [1987]) and therefore not admissible to establish how the accident occurred, the portion of the report which was based upon the officer's personal observation was admissible, as "reports of police officers made upon their own observation and while carrying out their police duties are generally admissible in evidence" (Yeargans v Yeargans, 24 AD2d 280, 282 [1965]). In the instant case, since the officer personally observed the stop sign and was under a business duty to make the report, that portion of the report fell within the business record exception to the hearsay rule (CPLR 4518 [a]; see also Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). Although the report is not in admissible form, we note that under certain circumstances, "[o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453, 454 [1985]; see also Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]; Guzman v Strab Constr. Corp., 228 AD2d 645 [1996]).

Summary judgment must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable (Dykeman v Heht, 52 AD3d 767 [2008]; Celardo v Bell, 222 AD2d 547 [1995]). Further, in deciding such a motion, the facts alleged by the nonmovant and inferences that may be drawn therefrom must be accepted as true (Dykeman, 52 AD3d 767; Doize v Holiday Inn Ronkonkoma, 6 AD3d 573 [2004]). Under the circumstances of this case, the police report notation regarding the visibility of the stop sign, particularly when considered in conjunction with the deposition testimony of plaintiff that the stop sign was "halfway up" and "bending" at a 45-degree angle, was sufficient to raise a triable issue of fact as to whether the sign was visible to Mr. Santagata before he proceeded into the intersection (see generally Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]). [*3]
Accordingly, we find that defendants made a sufficient showing to defeat plaintiff's motion for summary judgment, and the motion was properly denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 02, 2010