| Bailey v Reid |
| 2011 NY Slip Op 01779 [82 AD3d 809] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Lorna Bailey, Respondent, v Nathaniel Reid,Appellant. |
—[*1] Brecher, Fishman, Pasternack, Walsh, Tilker & Ziegler, P.C., New York, N.Y. (Tara M.Ulezalka of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated July 22,2010, as denied that branch of his motion which was for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the complaint isgranted.
The plaintiff, a pedestrian, allegedly was injured when she was struck by an automobilewhich left the scene. Thereafter, the plaintiff commenced this action against the defendant,alleging that he was the owner and operator of the vehicle that struck her. As relevant here, theSupreme Court denied that branch of the defendant's motion which was for summary judgmentdismissing the complaint. We reverse the order insofar as appealed from.
The defendant established his prima facie entitlement to judgment as a matter of law bysubmitting his deposition testimony, which demonstrated that the vehicle he was operating wasnot the vehicle which struck the plaintiff. In opposition, the plaintiff failed to submit evidencesufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). While a police report may be admissible into evidence under the business recordexception to the hearsay rule (seeNoakes v Rosa, 54 AD3d 317 [2008]), the portion of the police report relied upon by theplaintiff contained merely an inadmissible hearsay statement from an unknown declarant and,thus, was insufficient to raise a triable issue of fact (see State Farm Mut. Auto. Ins. Co. v Langan, 18 AD3d 860, 862[2005]; Gomes v Courtesy Bus Co., 251 AD2d 625, 626 [1998]; Sansevere v UnitedParcel Serv., 181 AD2d 521 [1992]). Accordingly, the Supreme Court should have grantedthat branch of the defendant's motion which was for summary judgment dismissing thecomplaint. Mastro, J.P., Skelos, Leventhal and Roman, JJ., concur.