PEREZ v. EXEL LOGISTICS INC (2000)

In an action to recover damages for personal injuries, the defendants Exel Logistics, Inc., Ruan Leasing Trust Company, and William Hammon appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated October 30, 1999, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

Viewing the evidence in a light most favorable to the plaintiff as the party opposing summary judgment, and giving her the benefit of every favorable inference (see, Sheryll v. L & J Hairstylists of Plainview, 272 A.D.2d 603, 709 N.Y.S.2d 429;  Rockowitz v. City of New York, 255 A.D.2d 434, 680 N.Y.S.2d 864), we agree with the Supreme Court that the plaintiff raised issues of fact which preclude an award of summary judgment to the appellants.   Moreover, the court also properly determined that the contemporaneous written and oral statements of an unidentified eyewitness, indicating that the appellants' truck struck the plaintiff's automobile, were admissible pursuant to the present sense impression exception to the hearsay rule (see, People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697, 670 N.E.2d 1328;  People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369;  People v. Gutierrez, 248 A.D.2d 295, 670 N.Y.S.2d 85;  Fisch on N.Y. Evidence § 1002 [2d ed.];   see also, Jones on Evidence, Civil and Criminal, § 28:25 [7th ed.];   Cargill Inc. v. Boag Cold Storage Warehouse, Inc., 71 F.3d 545, 555 [6th Cir.1995] ).

MEMORANDUM BY THE COURT.