WEISSMAN v. GRADA CONSTRUCTION CORP.

Friday, June 15, 2001

Supreme Court

Nassau County

Justice Palmieri

WEISSMAN v. GRADA CONSTRUCTION CORP. ” The motion by Plaintiffs, Ruth Weissman and Sidney Weissman, for a Order granting partial summary judgment on the issue of liability is denied.

On a motion for summary judgment the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law (see Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988) Alvarez v. Prospect Hosp., 68 NY2d 320 (1986), Rebecchi v. Whitmore, 172 AD2d 600, (2nd Dept. 1991). “The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact”. Frank Corp. v. Federal Ins. Co., supra at 967, GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965 (1985), Rebecchi v. Whitmore, supra at 601.

The instant action arises from a two-car collision, which occurred at the intersection of East Deer Park Road and Regency Road, Dix Hills, New York. Plaintiff, Ruth Weissman testified at her examination before trial that on the date of the accident from which this claim arises, she was operating a vehicle and that her husband and co-plaintiff, Sidney Weissman, was a passenger. She claims that they came to a full stop at the traffic light that controls the intersection, which was then red. When the light changed to green, plaintiff proceeded into the intersection to make a left turn and was struck by defendant’s vehicle. Plaintiffs further contend a witness stated that defendant failed to heed the traffic light which was red against his favor. Defendant driver, however, does not remember the color of the light.

The burden on the Court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. See, Barr v. County of Albany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312, 317 (2nd Dept. 1989). The defendant’s passenger, Albert Notarnicola, claims that he observed the traffic light to be red against the plaintiff. Mr. Notarnicola’s testimony raises a question of fact as to the color of the traffic light which must be determined by the trier of fact.

Plaintiffs contend in their motion that a police accident report includes, inter alia, an admission made by defendant, Nelson Periera, that he passed a red light controlling the intersection at which time the accident occurred. CPLR 4518(a) allows records made in the regular course of any business to be introduced into evidence when it was in the regular course of such business to make them. However, the Court of Appeals in Johnson v. Lutz, 253 NY 124 (1930) read into this rule a requirement that the person making the police report be the witness or that the person supplying the information to the entrant be under a business duty to do so (p. 128). In effect, each participant in the chain producing the record must be acting within the course of regular business conduct, see St. Lawrence County Dept. of Social Services v. Leon RR, 48 NY2d 117 (1979)

Here, the accident not having been witnessed by the police officer and there being no business duty for defendant Periera to report to the police officer, see Cover v. Cohen, 61 NY2d 274 (1984)), the accident report as a whole is not admissible as a business record. In the alternative, the defendant’s statements are admissible as admissions of a party and may be considered by this Court. Chemical Leaman Tank Lines, Inc. v. Stevens, 21 A.D.2d 556 (3rd Dept. 1964); Kelly v. Wasserman, 5 NY2d 425 (1959); Toll v. State, 32 A.D.2d 47 (3rd Dept. 1969). The statement signed by defendant Periera at the scene of the accident, while considered, is of questionable probative value.

Plaintiffs contend in their reply affirmation that Mr. Notarnicola’s testimony should not be admissible because they have not had the opportunity to depose him before the action was certified as trial ready. However, defendant Periera stated in his examination before trial held on January 25, 2001 that Mr. Notarnicola was in the vehicle with him, seated in the passenger side. This provided adequate notice to, and opportunity for, the plaintiff to seek to depose this witness prior to certification.

Plaintiffs claim that Mr. Notarnicola’s affidavit should not be admitted into evidence because it is notarized in New Jersey and lacks a notarial certification. CPLR ?§2309(c) requires in substance that oaths taken outside of New York State be accompanied by a certificate if required by ?§?§299 and 311 of N.Y. Real Property Law. Early versions of N.Y. Real Property Law ?§311 required such a certificate for proofs made by a notary public within the United States. Having been amended in 1975, however, ?§311 no longer requires authentication for a notary public within the United States and Canada. RPL ?§299(3) specifically designates a notary public as eligible to acknowledge a deed outside the state, and thus “under RPL ?§311(4) and (5), a separate authentication is not required for a notary public.” Firstcom Broadcast Services v. New York Sound Inc., 184 Misc.2d 524, (N.Y. City Civ. Ct. 2000).

It is unnecessary to consider either the defendant’s sur-reply or the plaintiff’s letter of objection to the same, as the information regarding Mr. Notarnicola being the defendant’s passenger was contained in the examination before trial of Mr. Periera attached to plaintiff’s moving papers. The balance of the sur-reply is not relevant to a determination of this motion.

Having found a material issue of fact, plaintiffs’ motion for summary judgment on the issue of liability against defendants must be denied.

This constitutes the Decision and Order of this Court.