MORETTA v. DAVENPORT EXPRESS INC (1997)

Supreme Court, Appellate Division, Second Department, New York.

Robert MORETTA, Appellant, v. DAVENPORT EXPRESS, INC., et al., Respondents.

Decided: October 14, 1997

Before MILLER, J.P., and O'BRIEN, SANTUCCI and ALTMAN, JJ.

Mallilo & Grossman, Flushing (Francesco Pomara, Jr., of counsel), for appellant. Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Robert M. Smith, of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered June 17, 1996, which, upon a jury verdict, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The trial court did not improvidently exercise its discretion in denying the plaintiff's request for a continuance to produce the police officer who responded to the scene of the accident. The officer was not a witness to the accident, and the plaintiff did not claim that he made any investigation of the accident which would have yielded relevant testimony (Balogh v. H.R.B. Caterers, Inc., 88 A.D.2d 136, 452 N.Y.S.2d 220).

The fact that a witness's statement was contained in the officer's report also is immaterial. The witness was not under a duty to give a statement to the police officer, and the statement did not fall under any exception to the hearsay rule, so it could not have been offered for its truth.

MEMORANDUM BY THE COURT.

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