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You are here: Home1 / Evidence2 / A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER...
Evidence, Negligence

A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER ADMISSIBLE IN THE 2ND DEPARTMENT AND DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing Supreme Court, noting prior decisions to the contrary should no longer be followed, determined a party’s hearsay admission in an uncertified police report is not admissible. Therefore, plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted:

At the first level of hearsay, the report itself must be admissible. A properly certified police accident report is admissible where “the report is made based upon the officer’s personal observations and while carrying out police duties” … . CPLR 4518(c) provides that the foundation for the admissibility of, inter alia, the records of a department or bureau of a municipal corporation or of the state may be laid through a proper certification … . CPLR 4518(c) “is governed by the same standards as the general business record exception” … . Thus, the certification must “set forth” … that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518[a]). * * *

Although a line of cases from our Court held that an uncertified police report constitutes inadmissible hearsay … , a separate line of cases anomalously espoused a carve-out to that rule, holding that a party’s admission in an uncertified police report is admissible against that party. Although a party’s admission is an exception to the hearsay rule … , it is not logically consistent to hold that such admission may be received into evidence where the business record containing the purported admission is not itself in admissible form. Stated differently, a party’s admission contained within a police accident report may not be bootstrapped into evidence if a proper foundation for the admissibility of the report itself has not been laid. Yassin v Blackman, 2020 NY Slip Op 05090, Second Dept 9-23-20

 

September 23, 2020
Tags: Second Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2020-09-23 16:34:252020-09-26 16:55:46A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER ADMISSIBLE IN THE 2ND DEPARTMENT AND DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).
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THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS PRECLUDED BY THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) WHICH APPLIES RETROACTIVELY TO THIS CASE; THE FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT). ​
THE CALCULATIONS IN THE REFEREE’S REPORT WERE NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT). ​
EVEN THOUGH THE BANK’S MOTION FOR AN ORDER OF REFERENCE WAS REJECTED AS DEFICIENT, THE MOTION CONSTITUTED INITIATING PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT; THE BANK’S MOTION TO VACATE THE DISMISSAL OF THE COMPLAINT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
MOTION TO VACATE DEFAULT JUDGMENT OF FORECLOSURE WAS SUPPORTED BY A SWORN DENIAL OF SERVICE AND SPECIFIC FACTS WHICH REBUTTED THE PRESUMPTION OF PROPER SERVICE, MATTER SENT BACK FOR A HEARING (SECOND DEPT).
MIDDLE DRIVER WAS PUSHED INTO PLAINTIFF’S CAR BY THE DRIVER BEHIND, MIDDLE DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED.

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EVIDENCE SUBMITTED IN PLAINTIFF BANK’S REPLY PAPERS PROPERLY CONSIDERED;... THE STATE HAS NOT PREEMPTED A MUNICIPALITY’S ABILITY TO REGULATE THE PROCESSING...
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