CHEUL SOO KANG v. VIOLANTE

Reset A A Font size: Print

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

CHEUL SOO KANG, appellant, v. Isaiah VIOLANTE, et al., respondents.

Decided: March 31, 2009

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, HOWARD MILLER, and RANDALL T. ENG, JJ. Kim & Cha, LLP, Flushing, N.Y. (Michael D. Robb of counsel), for appellant. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 31, 2007, which, upon a jury verdict on the issue of liability, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the judgment is reversed, on the law, on the facts, and in the exercise of discretion, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

The trial court erred in admitting a police accident report into evidence.   The report did not qualify for admission pursuant to CPLR 4518(c) because it was not certified, and no foundation testimony establishing its authenticity and accuracy was offered (see DeLisa v. Pettinato, 189 A.D.2d 988, 592 N.Y.S.2d 843;  Matter of Peerless Ins. Co. v. Milloul, 140 A.D.2d 346, 527 N.Y.S.2d 838).   Furthermore, the statements in the report attributed to the plaintiff and defendant driver constituted inadmissable hearsay (see Carr v. Burnwell Gas of Newark, Inc., 23 A.D.3d 998, 1000, 803 N.Y.S.2d 834;  Hatton v. Gassler, 219 A.D.2d 697, 631 N.Y.S.2d 757).   The error cannot be considered harmless.

The plaintiff's remaining contention is unpreserved for appellate review.

Copied to clipboard