The First Department noted that defendant's statement memorialized in a police report, acknowledging he did not stop at a red light, was an admission and a conflicting statement made later presented only a feigned issue of fact:
The police accident report and the affidavit of plaintiff Jose Colon were sufficient to demonstrate that defendant Jason S. Gilbert's negligence in failing to stop for the red light and yield the right of way in the intersection was the sole proximate cause of the accident… . His affidavit also showed the absence of comparative negligence in that he stated that he was going 25 miles per hour, looking straight ahead in the direction of travel, and could not see defendants' van because of a chain link fence, train trestle, and the height of his motor scooter… .
Although Gilbert denied that he stated to the police that he did not know that he had to stop for the red light, the court correctly concluded that the affidavit was insufficient to raise an issue of fact because statements by a party in a police accident report may constitute admissions, and later conflicting statements containing a different version of the facts present only a feigned issue of fact … . Colon v Vals Ocean Pac. Sea Food, Inc., 2018 NY Slip Op 00097, First Dept 1-9-18
NEGLIGENCE (TRAFFIC ACCIDENTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/EVIDENCE (POLICE REPORTS, NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/TRAFFIC ACCIDENTS (POLICE REPORTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/POLICE REPORTS (EVIDENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))