SILVERMAN v. Genuine Parts Company, as Successor in Interest to H.A. Holden, Inc., Defendant-Respondent.  (Appeal No. 1.) (2006)

 Plaintiff commenced this action seeking to recover damages for injuries she sustained when the vehicle she was operating collided with a vehicle operated by James J. Sciartelli (decedent) and allegedly owned by defendant Genuine Parts Company, as successor in interest to H.A. Holden, Inc. Plaintiff has no memory of the accident, and decedent died from unrelated causes before providing any testimony in this action.   At trial plaintiff sought to establish the cause of the accident through the testimony and accident report of the State Trooper who investigated the accident.   The Trooper, however, had no independent recollection of the accident or his investigation thereof.   Rather, he testified concerning what actions are generally taken when investigating accidents and what he would have done in accordance with that routine.

 We conclude that Supreme Court properly refused to allow the Trooper to testify with respect to his opinion concerning the cause of the accident.   It is well settled that an expert must give an evidentiary foundation for his or her expert opinion in order to render the opinion admissible (see Buchholz v. Trump 767 Fifth Ave., 5 N.Y.3d 1, 9, 798 N.Y.S.2d 715, 831 N.E.2d 960;  Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68;  Arricale v. Leo, 295 A.D.2d 920, 921, 744 N.Y.S.2d 109).  “ ‘[W]here the expert states his conclusion unencumbered by any trace of facts or data, his testimony should be given no probative force whatsoever ․ [and, i]ndeed, no reason is apparent why his testimony should not simply be stricken’ ” (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533-534 n. 2, 569 N.Y.S.2d 337, 571 N.E.2d 645).   Inasmuch as the Trooper could not give any evidentiary basis for his conclusion, such as location of the vehicles after the accident, the location and direction of skid marks, or the location of divots in the road, we conclude that plaintiff failed to establish a foundation for the Trooper to testify with respect to his opinion concerning the cause of the accident (see Arricale, 295 A.D.2d at 921, 744 N.Y.S.2d 109).

 We likewise conclude that the court properly refused to admit the police accident report in evidence.   Even though that document qualifies as a business record under CPLR 4518, it contained conclusions regarding the cause of the accident while lacking the requisite evidence that such conclusions were based on “postincident expert analysis of observable physical evidence” (Murray v. Donlan, 77 A.D.2d 337, 347, 433 N.Y.S.2d 184, appeal dismissed 52 N.Y.2d 1071;  see Dennis v. Capital Dist. Transp. Auth., 274 A.D.2d 802, 803, 711 N.Y.S.2d 836;  Conners v. Duck's Cesspool Serv., 144 A.D.2d 329, 329-330, 533 N.Y.S.2d 942).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: