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Fay v. Vargas

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 19, 2009

WILLIAM J. FAY III, ETC., PLAINTIFF-APPELLANT,
v.
ENRIQUE VARGAS, DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered June 23, 2008, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Sweeny, Nardelli, Catterson, DeGrasse, JJ.

18874/06

The police accident report was inadmissible because it was made by an officer who did not witness the accident and it contains the hearsay, and presumably self-serving, statements of plaintiff's decedent as to the ultimate issue of fact (Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 [2003], lv dismissed in part, denied in part 100 NY2d 636 [2003]; Kajoshaj v Greenspan, 88 AD2d 538, 539 [1982]). The officer's affidavit vouching for the truth of his report does not render admissible the hearsay statements contained in the report.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091119

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