The following numbered papers were read on this motion: NYSCEF Document Numbers 9-15, 17-21. ORDER Upon the foregoing papers, the Court having elected to determine the within motion on submission pursuant to IAS Part 2 Rules, and due deliberation having been had1, It is hereby ORDERED as follows: Plaintiff’s motion for summary judgment on the issue of liability and dismissing all affirmative defenses on liability is DENIED. Plaintiff has failed to tender sufficient evidence to establish a prima facie case for summary judgment in this matter. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “Only if the movant succeeds in meeting its burden will the burden shift to the opponent to demonstrate through legally sufficient evidence that there exists a triable issue of fact” (Richardson v. County of Nassau, 156 AD3d 924, 925 [2d Dept 2017]). “The evidence submitted in support of summary judgment must be in a form admissible at trial” (Midfirst Bank v. Agho, 121 AD3d 343, 347 [2d Dept 2014]). Plaintiff’s affidavit notes that Plaintiff was seated within Plaintiff’s parked vehicle on the date and time of the alleged subject accident when Plaintiff’s vehicle was struck by “a yellow taxi van operated by an African male.” This affidavit fails to establish that the vehicle that struck Plaintiff’s vehicle was either owned or operated by the named Defendants. Plaintiff does not identify the described vehicle operator as Defendant Mamadou Doumbia. No license plate or medallion number is provided. The assertion is barebones. The mere statement of “a yellow taxi van operated by an African male” is legally insufficient to connect Defendants to the alleged described accident. The police report submitted by Plaintiff, which contains a statement purporting to be from Defendant Mamadou Doumbia, that “he did not realize the collision had occurred,” cannot be considered. “An uncertified police accident report does not constitute admissible evidence, absent a proper foundation for its admissibility,” where the police report is offered by the movant, even if the police officer purports to record the defendant driver’s admission (Yassin v. Blackman, 188 AD3d 62 [2d Dept 2020]). Here, there was no proper foundation for the admissibility of the police report submitted by movant Plaintiff. The affirmation of Albert R. Matuza, Jr., Plaintiff’s counsel, affirmed: “Plaintiff was parallel parked approximately 5-6 inches from the curb facing straight ahead with her gear shift in park when the driver’s side of her vehicle was struck by the defendants’ vehicle while on Bushwick Avenue near the intersection of Jefferson Avenue in the County of Kings, City and State of New York” (NYSCEF Doc No. 10 3). This is insufficient to connect Defendants to the alleged accident inasmuch as counsel has no personal knowledge of the details thereof and his affirmation as to facts is “based on the contents of the file maintained by this office” (id. 1; see Browne v. Castillo, 288 AD2d 415 [2d Dept 2001]). Therefore, Plaintiff’s affidavit, the uncertified police report, and Plaintiff’s counsel’s affirmation fail to establish prima facie entitlement to the requested relief in the form of summary judgment on liability, including dismissal of Defendants’ affirmative defenses. Furthermore, Defendant Doumbia’s affidavit asserts that he was operating Defendant Thekami Taxi, LLC’s vehicle on a nearby street, not connected with the subject accident, and that he was not involved in a collision or accident on the date in question as he did not feel any collision or accident. He claimed that someone came up behind him and accused him or hitting his driver’s side mirror. Thus, even if Plaintiff had made out a prima facie case in support of his motion, a material issue of fact would preclude granting Plaintiff summary judgment. Accordingly, Plaintiff’s motion is denied in its entirety. Dated: January 13, 2024
