Second Department Finds Police Report Was Improperly Admitted into Evidence; Orders New Trial

The New York Supreme Court, Appellate Division, Second Department reversed a trial court order for summary judgment in favor of the defendant driver in a pedestrian car accident case.

The plaintiff was a pedestrian who was crossing the street when she was injured after being struck by the defendant’s car. The plaintiff argued that the defendants negligently drove their car into the plaintiff. The plaintiff also argued that the defendants committed intentional gross negligence. The plaintiff stated that she was struck by the defendant’s car while she was walking across a street within a pedestrian crosswalk with the light in her favor. However, the defendant testified that the plaintiff was riding a bicycle at the time of the accident and that the accident occurred after she suddenly appeared from between parked cars while trying to cross the street in the middle of the block.

At trial, the defendant-driver introduced a redacted police accident report into evidence, over the plaintiff’s objection, which demonstrated that the plaintiff was in fact riding a bicycle at the time of the accident. The redacted police report also proved that the accident happened in the middle of the block. cyclist The police officer who prepared the accident report testified at trial that he could not remember whether he saw a bicycle at the scene after the accident, he could not recollect the basis for identifying the location of the accident on the accident report, and he could not remember the source of any of the information in the redacted police accident report.

Following the trial, the jury found that the defendants were not negligent, and therefore the court dismissed the plaintiff’s complaint.

The plaintiff appealed the jury verdict in favor of the defendants claiming that the police report was improperly admitted into evidence.

Under New York law, a police accident report is admissible as a business record only if the report is made based upon the officer’s personal observations while carrying out police duties.  However, if the information in the police accident report was not based on the police officer’s personal observations, it may still be admissible as a business record “ if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her].”

The Court found that the police report was unsatisfactory in demonstrating that the information at issue in the redacted police accident report came from the police officer’s personal observations, who did not witness the subject accident.

The police officer had no personal recollection of his investigation after the motor vehicle accident and could not testify as to the source of the information in the police accident report. The Second Department found that the lower court mistakenly allowed the police accident report into evidence because the source of the information contained in the redacted accident report was not identifiable.

The Second Department also found that the jury should have determined the validity of the information at issue in the redacted police accident report, as it was the ultimate issue in the case. Thus, the Supreme Court’s error in admitting the redacted police accident report into evidence was not a harmless error.

The Second Department therefore ordered that a new trial be conducted with a different judge.

Memenza v. Cole, 131 A.D.3d 1020, 1023, 16 N.Y.S.3d 287, 290 (N.Y. App. Div. 2015)

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