Opinion
15377 Index No. 23388/18E Case No.2021–01531
02-24-2022
Britta W. PATTON, Plaintiff–Respondent, v. Marco A. GENITO et al., Defendants–Appellants.
Law Offices of Kevin P. Westerman, Elmsford (Gregory Perrotta of counsel), and Law Offices of Brian Rayhill, Elmsford (Gregory Perrotta of counsel), for appellants. Trolman Glaser Corley & Lichtman, P.C., New York (Morgan A. Corley of counsel), for respondent.
Law Offices of Kevin P. Westerman, Elmsford (Gregory Perrotta of counsel), and Law Offices of Brian Rayhill, Elmsford (Gregory Perrotta of counsel), for appellants.
Trolman Glaser Corley & Lichtman, P.C., New York (Morgan A. Corley of counsel), for respondent.
Webber, J.P., Kern, Moulton, Gonza´lez, Mendez, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about April 6, 2021, which granted plaintiff's motion for summary judgment on the issue of liability and dismissing defendants’ affirmative defense of comparative negligence, unanimously affirmed, without costs.
In opposition to plaintiff's prima facie showing of entitlement to summary judgment, defendants failed to submit admissible evidence demonstrating a triable issue of fact, by offering a "nonnegligent explanation for the accident, or a nonnegligent reason for [their] failure to maintain a safe distance between [their] car and the lead car" ( Woodley v. Ramirez, 25 A.D.3d 451, 452, 810 N.Y.S.2d 125 [1st Dept. 2006] ). Defendant Genito, who had been precluded by the court from submitting an affidavit in opposition to any summary judgment motion due to his failure to complete his deposition testimony, did not submit any evidence in opposition to the motion. In addition, the affidavit submitted by Suzanne Tartnack, on behalf of defendant K.I.T. Transportation, Inc. setting forth the details of the accident as told to her by Genito, constituted inadmissible hearsay. Contrary to defendants’ argument, the "Drivers’ Accident Report" attached to Tartnack's affidavit containing Genito's description of the accident likewise recites hearsay and is not admissible under the business record exception to the hearsay rule (see People v. Cratsley, 86 N.Y.2d 81, 89, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ; see also People v. Kennedy, 68 N.Y.2d 569, 580, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986] ).
We have considered defendants’ remaining arguments and find them unavailing.