January 28, 2014
Fernando Roman, et al., Plaintiffs,
Silvia B. Cabrera, Defendant, Liberty Mutual Insurance Company, as subrogee of Julia Román, Plaintiff-Respondent, Frank Lawrence, IV, Defendant-Appellant.
O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, White Plains (Montgomery L. Effinger of counsel), for appellant.
KLG Luz & Greenberg LLP, New York (Luke Tynan of counsel), for respondent.
Tom, J.P., Sweeny, DeGrasse, Gische, Clark, JJ.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered on or about April 12, 2013, which denied the motion by defendant Lawrence, for summary judgment dismissing the complaint and all cross claims as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The subject motor vehicle accident occurred on the northbound side of Interstate 95 in the Town of Mamaroneck. Plaintiff Fernando Roman was struck by an automobile that was being operated by defendant Silvia B. Cabrera. At the time of the accident, Roman was changing a tire on a vehicle that was parked on the right shoulder of the highway. According to a police report prepared by State Trooper Rosado, the accident occurred at 7:29 a. m. near milepost marker 8.7. Lawrence, who alleges that he did not see plaintiff's accident, testified that his automobile was stuck in the left lane and disabled after it struck the median divider on the left side of the roadway. A second police report, prepared by State Trooper Bozier, indicates that Lawrence's collision occurred at 7:22 a. m. near milepost 8.6.
Plaintiffs assert that there are triable issues of fact as to whether Lawrence was negligent and whether such negligence was a proximate cause of the contact between Cabrera's vehicle and Roman. Cabrera, who appeared by counsel, did not submit an affidavit and was apparently not deposed. Nonetheless, plaintiffs opposed the motion solely on the basis of a notation in Trooper Rosado's report to the effect that "Cabrera swerved to avoid Mr. Lawrence's vehicle and in so doing lost control of her vehicle, striking Mr. Román...." This police accident report is insufficient to raise an issue of fact since it recites hearsay and was prepared by an officer who had not observed the accident (see Singh v Stair, 106 A.D.3d 632 [1st Dept 2013]). Moreover, plaintiffs have not demonstrated an excuse for their failure to offer proof on the issue in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1068 ).
Even if it were admissible, the police report would still be insufficient to raise a triable issue of fact. Liability may not be imposed on a party who merely furnishes the condition or occasion for the occurrence of the event, but was not one of its causes (see Sheehan v New York, 40 N.Y.2d 496, 503 ). The report would not have raised an inference that Lawrence's conduct caused the emergency condition created when his vehicle hit the median divider as he tried to avoid colliding with third unidentified car, which allegedly swerved into his lane (see Paulino v Guzman, 85 A.D.3d 631, 632 [1st Dept 2011]).