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Source of Information in Police Report Unknown—Reversible Error to Admit Hearsay in the Report

The Second Department determined a new trial was necessary in this pedestrian-injury case because defendant was allowed to place inadmissible hearsay, contained within a police report, in evidence. Plaintiff alleged she was struck by defendants’ car when she was crossing the street in a crosswalk with the light in her favor. Defendants alleged plaintiff was riding a bicycle and darted out between two cars. The police report supported defendants’ version. However, the officer who wrote the report testified he had no recollection of the source of the information in the report. The Second Department explained why none of the exceptions to the hearsay rule applied to the information in the report:

“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule” … . Pursuant to CPLR 4518(a), a police accident report is admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties … . If information contained in a police accident report was not based upon the police officer’s personal observations, it may nevertheless be admissible as a business record “if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her]” … . If the person giving the police officer the information was not under a business duty to give the statement to the police officer, such information “may be proved by a business record only if the statement qualifies [under some other] hearsay exception, such as an admission” … . In other words, “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . “The proponent of hearsay evidence must establish the applicability of a hearsay-rule exception” … . Memenza v Cole, 2015 NY Slip Op 06789, 2nd Dept 9-16-15

 

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