BATISTA v. Ellis G. Merquiades, Defendant. (2006)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered August 24, 2004, which, in an action for personal injuries sustained when the vehicle in which plaintiff was a passenger was hit in the rear by defendant-respondent's vehicle, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

 Plaintiff did not support the motion with evidentiary proof in admissible form (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ), but instead relied on an attorney's affirmation (see id. at 563, 427 N.Y.S.2d 595, 404 N.E.2d 718) and hearsay portions of a police accident report (see Conners v. Duck's Cesspool Serv., 144 A.D.2d 329, 533 N.Y.S.2d 942 [1988] ).   Plaintiff did submit his verified complaint, but that merely stated that the host car was “situated” at the intersection, not stopped, and that defendant's car “made contact” with the host car without indicating that the contact was from behind.   The only sworn statement of a rear-end collision in support of the motion by a person with knowledge of the facts is plaintiff's reply affidavit, which may not be considered for the purpose of showing prima facie entitlement to summary judgment (see Azzopardi v. American Blower Corp., 192 A.D.2d 453, 596 N.Y.S.2d 404 [1993];  cf. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).