| Scott v Kass |
| 2008 NY Slip Op 01738 [48 AD3d 785] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Charlene Scott, Plaintiff, v Bryan Kass, Respondent, andJuan Aponte et al., Appellants. |
—[*1] Craig P. Curcio, P.C., Middletown, N.Y. (Timothy Blum of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Juan Aponte and L & LCab Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Donovan, J.), entered July 16, 2007, as denied their cross motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellants' cross motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them is granted.
The appellants established their prima facie entitlement to summary judgment by submittingevidence showing that the defendant Bryan Kass violated Vehicle and Traffic Law § 1126(a) by crossing over a double yellow line into an opposing lane of traffic, thereby causing thecollision (see Marsicano v Dealer Stor. Corp., 8 AD3d 451 [2004]; Browne vCastillo, 288 AD2d 415 [2001]). This constituted negligence as a matter of law (seeGadon v Oliva, 294 AD2d 397, 398 [2002]). The police accident report submitted by theappellants in support of their cross motion for summary judgment contained a statement by thedefendant Bryan Kass that he had fallen asleep while driving and that his vehicle had crossedover a double yellow line into oncoming traffic and struck a telephone pole on the opposite sideof the road. The police officer who prepared the report was acting within the scope of his duty inrecording Kass's statement, and the statement is admissible as the admission of a party (seeGuevara v Zaharakis, 303 AD2d 555, 556 [2003]; Ferrara v Poranski, 88 AD2d 904[1982]). Additionally, [*2]the diagram and other entries in thepolice accident report showing where the vehicles struck each other and the position and path oftravel of each vehicle is admissible since the reporting officer could make these determinationshimself when he arrived on the scene (see Exantus v Town of Ossining, 266 AD2d 502[1999]).
The plaintiff did not oppose the appellants' cross motion. The only opposition was fromKass, whose submission failed to raise a triable issue of fact as to the appellants' negligence.Speculation that the driver in the opposing lane of traffic could have done something to avoid avehicle crossing over a double yellow line is insufficient to defeat a motion for summaryjudgment (see Eichenwald v Chaudhry, 17 AD3d 403, 404 [2005]; Gadon v Oliva,294 AD2d 397, 398 [2002]).
Kass's remaining contentions need not be addressed in light of our determination. Lifson,J.P., Ritter, Angiolillo and Carni, JJ., concur.