| Hazzard v Burrowes |
| 2012 NY Slip Op 03409 [95 AD3d 829] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Nigel L. Hazzard, Appellant, et al., Plaintiff, v KatherineBurrowes, et al., Respondents. |
—[*1] James G. Bilello, Westbury, N.Y. (Patricia McDonagh and Glenn Schwartz of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff Nigel L. Hazzard appealsfrom an order of the Supreme Court, Kings County (Silber, J.), entered September 21, 2010,which denied his motion for summary judgment dismissing the defendants' counterclaim.
Ordered that the order is affirmed, with costs.
On August 18, 2007, at or near the intersection of Remsen Avenue and Avenue B inBrooklyn, a vehicle owned and operated by the plaintiff Nigel L. Hazzard (hereinafter theappellant), in which the plaintiff Shellie Graham was a passenger, was struck in the rear by avehicle operated by the defendant Katherine Burrowes (hereinafter Burrowes) and owned by thedefendant Horace Burrowes. After this action was commenced, the defendants served a verifiedanswer and interposed a counterclaim against the appellant for contribution and indemnification.The Supreme Court denied the appellant's motion for summary judgment dismissing thecounterclaim.
The appellant failed to establish his entitlement to judgment as a matter of law dismissing thecounterclaim. In support of his motion, he submitted the affirmation of his attorney, a copy of therelevant police accident report, and the transcript of the deposition testimony of Burrowes. Theappellant failed to submit his own affidavit or deposition testimony. At her deposition, Burrowestestified that she was traveling directly behind the appellant's vehicle, and that, after she and theappellant each made a left turn from Remsen Avenue onto Avenue B, the appellant's vehiclemade a sudden stop. As Burrowes described it, the front of her vehicle then collided with the rearof the appellant's vehicle. Burrowes further testified that she thought that the appellant's vehiclestopped because another vehicle, a Mercedes, had come to a sudden stop directly in front of theappellant's vehicle. Burrowes explained that she did not believe that there was any contactbetween the appellant's vehicle and the Mercedes because the Mercedes drove away. Since theappellant did not submit his own affidavit or deposition testimony, the record is silent as to hisversion of the events.[*2]
"There can be more than one proximate cause of anaccident" (Cox v Nunez, 23 AD3d427, 427 [2005]). Therefore, even if Burrowes failed to maintain a reasonably safe distanceand rate of speed while traveling behind the appellant's vehicle (see Vehicle and TrafficLaw § 1129 [a]), the appellant's proof did not establish, as a matter of law, his freedomfrom comparative negligence regarding the distance between his own vehicle and the Mercedesahead of him (see Tutrani v County ofSuffolk, 10 NY3d 906, 907-908 [2008]; Hernandez v Tepan, 92 AD3d 721 [2012]). Moreover, the policeaccident report was inadmissible, as it was not certified as a business record (see CPLR4518 [a]), and the statements by both the appellant and Burrowes were self-serving, did not fallwithin any exception to the hearsay rule, and bore upon the ultimate issues of fact to be decidedby the jury (see Noakes v Rosa, 54AD3d 317, 318 [2008]; Casey v Tierno, 127 AD2d 727, 728 [1987]).
The appellant's remaining contentions either are without merit or have been renderedacademic by our determination.
Accordingly, the Supreme Court properly denied the appellant's motion for summaryjudgment dismissing the defendants' counterclaim. Dillon, J.P., Angiolillo, Belen and Cohen, JJ.,concur.