2nd Dept. Discusses Admissibility of Uncertified Police Reports in Personal Injury Case

In Yassin v. Blackman, No. 2019-04138, 2020 N.Y. Slip Op. 05090, 2020 WL 5648349 (N.Y.A.D. 2 Dept., Sep. 23, 2020) – a personal injury motor vehicle accident case – the Appellate Division, Second Department clarified its “case law regarding the admissibility of a party’s statement recorded in an uncertified police report” and held “that, absent a proper foundation, a party’s admission contained in an uncertified police accident report is inadmissible.”

From the decision:

The use of a statement recorded in a police accident report involves two levels of hearsay, each of which must fit within a hearsay exception to render the statement contained within the report admissible (see Memenza v. Cole, 131 AD3d at 1022, citing Murray v. Donlan, 77 A.D.2d 337, 346).

At the first level of hearsay, the report itself must be admissible. A properly certified police accident report is admissible where “the report is made based upon the officer’s personal observations and while carrying out police duties” (Memenza v. Cole, 131 AD3d at 1021). CPLR 4518(c) provides that the foundation for the admissibility of, inter alia, the records of a department or bureau of a municipal corporation or of the state may be laid through a proper certification (see CPLR 2306; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C4518:10 [“CPLR 4518(c) … provides a means of dispensing with foundation testimony as a prerequisite to admission of,” inter alia, “records of a department or bureau of a municipal corporation or of the state”] ). CPLR 4518(c) “is governed by the same standards as the general business record exception” (People v. Mertz, 68 N.Y.2d 136, 147). Thus, the certification must “set forth” (id. at 148) that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518[a]).

At the second level of hearsay, assuming a properly certified police accident report, the statement recorded within the police accident report by the police officer must satisfy a hearsay exception. This Court has held that, even where a police report is properly certified, the hearsay statements of nonparties or unknown sources contained therein may not be admitted for their truth (see Noakes v. Rosa, 54 AD3d 317, 318 [“The police report should not have been admitted into evidence as a business record exception to the hearsay rule. The statement in the report that the defendant ‘rear-ended’ the plaintiff was from an unknown source” (citation omitted) ]; DeLuca v. Blanco, 31 AD3d 600, 601 [“The trial court properly refused to admit into evidence a statement made by a witness to the accident, who did not testify at the trial, which was contained in the police accident report. The statement did not fall under any of the recognized exceptions to the hearsay rule”]; see also Shehab v. Powers, 150 AD3d 918, 919 [“information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under any other hearsay exception”]; Memenza v. Cole, 131 AD3d at 1022 [“Since the source of the information contained in the redacted accident report was not identifiable, it was error to admit it into evidence, inasmuch as it could not be established whether the source of the information had a duty to make the statement or whether some other hearsay exception applied”] ). Where, as here, the police report has not been certified, and a foundation for its admissibility has not been laid by some other method, the report and its contents constitute inadmissible hearsay (see Johnson v. Lutz, 253 N.Y. 124, 128).

The court was careful to note that its holding involved a situation where “a party affirmatively proffers a police accident report in support of a motion for summary judgment” and did not rule “as to whether an uncertified police accident report may be considered by a court” where hearsay is “received in opposition to a motion for summary judgment if it is not the only evidence submitted.”

As to the facts of this case, the court concluded that it was error to grant plaintiff’s motion for summary judgment on the issue of liability. Defendant raised an issue of fact as to defendant’s negligence through the submission of (inter alia) defendant’s affidavit (regarding its account of how the accident happened). Having concluded that the uncertified police accident report was inadmissible, the court did not reach plaintiff’s argument that the court should disregard defendant’s affidavit “as a feigned attempt to avoid the consequences of the admission he purportedly made to the police officer who prepared the police accident report.”

Share This:
(212) 227-2100