| Noakes v Rosa |
| 2008 NY Slip Op 06550 [54 AD3d 317] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Kenneth Noakes, Respondent, v Johanna Rosa,Appellant. |
—[*1] Dinkes & Schwitzer, New York, N.Y. (Christian R. Oliver of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from aninterlocutory judgment of the Supreme Court, Westchester County (Liebowitz, J.), dated January16, 2008, which, upon a jury verdict finding her 65% at fault and the plaintiff 35% at fault in thehappening of the accident, is in favor of the plaintiff and against her on the issue of liability.
Ordered that the interlocutory judgment is reversed, on the law, and the matter is remitted tothe Supreme Court, Westchester County, for a new trial on the issue of liability, with costs toabide the event.
This is an action to recover damages for personal injuries allegedly sustained by the plaintiffin an automobile accident. The plaintiff alleged that the defendant's car rear-ended his car. Thedefendant alleged that the plaintiff's car backed into her car. At the trial on the issue of liabilitythe court admitted into evidence, over the defendant's objection, a police accident report. Thereport contained two opposing hearsay statements regarding how this accident allegedlyoccurred. It also contained a statement allegedly made by the defendant that she was upsetbecause she had received bad news. The subscribing police officer was not an eyewitness and didnot testify at trial.
The police report should not have been admitted into evidence as a business record exceptionto the hearsay rule (see Johnson v Lutz, 253 NY 124 [1930]). The statement in the reportthat the defendant "rear-ended" the plaintiff was from an unknown source. Since the source ofthis statement was not identifiable, it was error to admit it (see Battista v Rizzi, 228AD2d 533 [1996]). It could not be established whether the source had a duty to make thestatement or whether some other hearsay exception [*2]applied(see Murray v Donlan, 77 AD2d 337 [1980]).
It was also error to admit the statement in the report allegedly made by the defendant that theplaintiff's car backed into her car. This was a self-serving statement that did not fall within ahearsay exception (see Casey v Tierno, 127 AD2d 727 [1987]).
Since these statements bore on the ultimate issue of fact to be decided by the jury, theiradmission constituted prejudicial and reversible error, and a new trial is warranted (seeHatton v Gassler, 219 AD2d 697 [1995]; Gagliano v Vaccaro, 97 AD2d 430 [1983]).Spolzino, J.P., Santucci, Eng and Leventhal, JJ., concur.