IN RE: Sammy LUNA (2024)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about November 2, 2023, which denied the petition for leave to bring an action against respondent, unanimously reversed, on the law, without costs, and the petition granted.

The court improperly denied petitioner's motion based on hearsay statements in the Prehospital Care Report, as the report was not certified or authenticated and no proper foundation was provided for it (see Matter of Allstate Ins. Co. [Spadaccini], 52 A.D.2d 813, 383 N.Y.S.2d 605 [1st Dept. 1976]).  Therefore, the statements in the Prehospital Care Report cannot create an issue of fact.  Even if it were appropriate to consider the report, it would “merely present[ ] an issue of fact to be resolved in the plenary action” since it is contradicted by the allegations in the petition, petitioner's affidavit, the Household Affidavit, the motor vehicle accident report, and petitioner's deposition testimony concerning whether there was contact between his bicycle and the hit and run vehicle (see Matter of Pena v. Motor Veh. Acc. Indem. Corp., 99 A.D.3d 475, 475, 951 N.Y.S.2d 398 [1st Dept. 2012]).