After a Bench Trial to recover for damages to real property, to wit, a motor vehicle, claimant demonstrated his prime facie entitlement to judgment as a mater of law. Claimant testified as to the damages to his vehicle. Additionally, after an inquiry under oath, the claimant’s son testified that claimant’s motor vehicle was parked outside of his home when defendant, while intoxicated, negligently struck claimant’s vehicle causing substantial damage to his vehicle (See, Hain v. Jamison, 28 NY3d 524 [2016]). Furthermore, claimant submitted admissible evidence, including photographs, a police accident report (Jackson v. Trust, 103 AD3d 851 [2nd Dept. 2013]); Scott v. Kass, 48 AD3d 785 [2nd Dept. 2008]), and surveillance video, to establish prima facie that the property damage to the parked motor vehicle was the sole proximate cause of the accident (See, Adobea v. Junel, 114 AD3d 818 [2nd Dept. 2014]). Defendant failed to set forth a colorable argument in support of dismissal (see, Fuentes v. Virgil, 119 AD3d 522 [2nd Dept. 2014]). Indeed defendant’s counsel admitted defendant’s negligence per se when counsel stated on the record that his client, the insurance company, offered to pay claimant a nominal amount on the claim (See, Barbieri v. Vokoun, 72 AD3d 853 [2nd Dept. 2010]). Accordingly, judgment is rendered in claimant’s favor in the amount of five thousand dollars ($5,000.00). Decision Claimant is entitled to judgment as a matter of law as he sufficiently demonstrated with admissible evidence that defendant’s negligence was the sole proximate cause of the damage to his motor vehicle. To satisfy a primary facie entitlement to judgment as a matter of law and recover for property damages, a claimant must establish that defendant’s negligence was the sole proximate cause of the property damage (See, Hain v. Jamison, 28 NY3d 524, 528 [2016] (“The overarching principle governing determinations of proximate cause is that a defendant’s negligence qualifies as a proximate cause where it is a ‘substantial cause of the events that produced the [] [damages]“, citing Mazella v. Beals, 27 NY3d 694, 706 [2016], quoting, Derdiarian v. Felix Contractor Corp., 51 NY3d 308, 315 [1980]). The claimant is the owner of the 2005 Nissan Frontier (hereinafter “Nissan”).1 On October 14, 2018, claimant’s Nissan was parked in front of his residence at 64 Livingston Avenue, Yonkers, New York. Claimant testified that at approximately 4:00 a.m. on that date there was a motor vehicle accident in front of his house involving his Nissan. Claimant testified that when he went outside of his house, he saw his Nissan and other vehicles damaged and the defendant’s vehicle upside down. Claimant admitted into evidence photographs that depicted the damage to his Nissan and defendant’s vehicle flipped over and upside down on its roof (Pl. Ex. 6). Claimant’s son, Javier Torres, testified under oath at trial that on the night of the incident he was inside his home at 64 Livingston Avenue, Yonkers, New York, when he heard a loud bang. He then testified that he went outside and observed that his father’s Nissan and his sister’s motor vehicle had significant damage, and he saw defendant’s vehicle upside down on its roof. Mr. Torres further averred that he then went over to the defendant’s vehicle and assisted the defendant in getting out of the vehicle. He testified that the defendant’s breath smelled of alcohol and his speech was slurred. Mr. Torres further testified that the police arrived, and defendant was ultimately taken to the hospital by his friends. To substantiate his testimony of the events of the evening of October 14, 2018, Mr. Torres exhibited to the Court a surveillance video of that evening. The video clearly depicted defendant’s vehicle rigorously impacting claimant’s Nissan as well as claimant’s daughter’s vehicle, and defendant subsequently flipping over in his motor vehicle. Additionally, claimant proffered the police accident report to support his contention of defendant’s negligence (P1. Ex. 5). In the police report the reporting police officer stated: Driver V1 who left the scene prior to the arrival of the assigned and was transported to St[.] Joseph [']s Hospital to be treated for minor injuries related that he fell asleep while driving his vehicle NB on Livingston Ave and struck the 3 parked and unoccupied vehicles listed above on the east side of said street. Drive of V1 further related that when he struck said vehicles he awoke and tried to steer his vehicle but lost control and the vehicle rolled over onto its roof. V1 came to a rest on the west side of Livingston Ave. V1 struck V2 in the rear causing it to strike V3 and V3 was pushed into V4. The owners of V2, V3, and V4 were on scene and issued YPD-5. V1 was towed by transit towing [] (Id.). Defendant objected to the admissibility of the police accident report on the ground that it was not certified as a business record (See, CPLR 4518 [a]; Hazzard v. Burrowes, 95 AD3d 829 [2nd Dept. 2012]). Contrary to defendant’s contention, the party admission exception to the hearsay rule is applicable because the statement is admissible as an admission of a party and the police officer who prepared the report was acting within the scope of his duty in recording defendant’s statement (See, Jackson v. Trust, 103 AD3d 851 [2nd Dept. 2013]); Scott. V. Kass, 48 AD3d 785 [2nd Dept. 2008]). In opposition, defendant failed to raise a triable issue of fact as to comparative negligence or raise a colorable argument in support of his motion to dismiss (See, Fuentes v. Virgil, 119 AD3d 522 [2nd Dept. 2014]; Vyrtle Trucking Corp. v. Browne, 93 AD3d 716 [2nd Dept. 2012]). Rather, defense counsel2 proffered that the insurance company had paid the property damage claims for the other two parked motor vehicles that defendant hit on October 14, 2018. Counsel further stated that claimant was offered what was remaining on the insurance policy, eight hundred dollars ($800.00) satisfy his property claim. Thus, counsel’s submissions before the Court constitute an admission per se of defendant’s negligence (See, Barbieri v. Vokoun, 72 AD3d 853 [2nd Dept. 2010] ). Claimant met his prima facie burden of demonstrating entitlement to judgment as a matter of law. The testimony provided by claimant and his son, coupled with the documentary evidence of the photos (Pl. Ex. 6), the police accident report (Id., at 5), and the surveillance video sufficiently establish that defendant’s negligence proximately caused the damage to claimant’s Nissan (See, Adobea v. Junel, 114 AD3d 818 [2nd Dept. 2014]). Claimant substantiated his claim of the Nissan’s value by submitting an estimate from Mayfield Auto Body for $6,702.25 (Pl. Ex, 1), and, Francesco Auto Body, Inc. for $6,738.65 (Pl. Ex. 4). Additionally, claimant submitted a Kelly Blue Book Report indicating the Nissan’s value to have a private party sale value of $7,832.00 1. Ex. 3). As such, since this Court has determined that claimant has satisfied his prima facie case, claimant is entitled to the full judgment amount sought — five thousand dollars ($5,000.00) as claimant has submitted sufficient evidence to establish the Nissan’s value and defendant has failed to submit conflicting evidence to rebut the presumption of negligence (See, Rainford v. Han, 18 AD3d 638 [2nd Dept. 2005]). THE FOREGOING SHALL CONSTITUTE THE DECISION AND ORDER OF THIS COURT. JUDGMENT IS RENDEREED IN FAVOR OF: CLAIMANT: Javier Torres RESIDING AT: 64 Livingston Avenue, Yonkers, NY 10705 AGAINST DEFENDANT: Angel Ledesma RESIDING AT: 102 Highland Avenue, #61, Yonkers, NY 10705 for the sum of $5,000.00 plus $20.00 costs, amounting to a total of $5,020.00. JUDGMENT ENTERED IN ACCORDANCE WITH THE FOREGOING: U.C.C.A Section 1703 subsection (c) (iii) “An appeal from this judgment must be taken no later than the earliest of the following dates: (i) thirty days after receipt in court of a copy of the judgment by the appealing party, (ii) thirty days after personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) thirty-five days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to this action.” Dated: March 3, 2021
