| Jackson v Trust |
| 2013 NY Slip Op 01237 [103 AD3d 851] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Terilynn Jackson, Appellant, v Donien Trust et al.,Respondents. |
—[*1] Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Hicksville, N.Y. (Bradley J. Levienof counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Strauss, J.), dated August 31, 2011, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
The defendants established their prima facie entitlement to judgment as a matter oflaw by submitting the deposition of the defendant driver, who stated that her vehiclenever made any contact with the plaintiff's decedent as he was crossing the street within acrosswalk (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However,in opposition, the plaintiff raised a triable issue of fact by submitting a copy of the policeaccident report, which contained a statement by the defendant driver that her vehiclegrazed the left leg of the plaintiff's decedent. The police officer who prepared the reportwas acting within the scope of his duty in recording the defendant driver's statement and,contrary to the defendants' contention, the statement is admissible as an admission of aparty (see Scott v Kass, 48AD3d 785 [2008]; Kemenyash v McGoey, 306 AD2d 516 [2003];Guevara v Zaharakis, 303 AD2d 555, 556 [2003]; Ferrara v Poranski, 88AD2d 904 [1982]). Accordingly, the Supreme Court should have denied the defendants'motion for summary judgment dismissing the complaint. Mastro, J.P., Lott, Roman andCohen, JJ., concur.