| Hernandez v Tepan |
| 2012 NY Slip Op 01211 [92 AD3d 721] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Noel Hernandez, Appellant, v Julio Tepan,Respondent. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Rothenberg, J.), dated August 18, 2011, which denied hismotion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law onthe issue of liability (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). As thedefendant correctly contends, the police accident report submitted by the plaintiff in support ofthe plaintiff's motion for summary judgment on the issue of liability constituted inadmissiblehearsay, since the report was not certified as a business record (see CPLR 4518 [a];Johnson v Lutz, 253 NY 124, 128 [1930]; Bailey v Reid, 82 AD3d 809, 810 [2011]; see also Noakes v Rosa, 54 AD3d317, 318 [2008]), and there is no indication that some other hearsay exception applied to thestatements contained in the report (see Bailey v Reid, 82 AD3d at 810; State Farm Mut. Auto. Ins. Co. vLangan, 18 AD3d 860, 862-863 [2005]; see also Noakes v Rosa, 54 AD3d at318).
Further, "[t]here can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427, 427[2005]). Therefore, even if the defendant violated Vehicle and Traffic Law § 1143, as theplaintiff alleges, the plaintiff's affidavit did not establish, as a matter of law, the plaintiff'sfreedom from comparative negligence (see Gardella v Esposito Foods, Inc., 80 AD3d 660 [2011]).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the issue of liability. Skelos, J.P., Leventhal, Lott and Miller, JJ., concur.