State Farm Mut. Auto. Ins. Co. v. Coward

Recitation, as required by CPLR S 2219 (a), of the papers considered in the review, of this Motion Papers  Numbered Notice of Motion and Affidavits Annexed       1 Order of Show Cause Answering Affidavits    2 Replying Affidavits            3 Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, defendant’s motion for summary judgment, pursuant to CPLR §3212, is decided as follows: Plaintiff State Farm Automobile Insurance Co., (State Farm) commenced an action to recover property damages sustained by its subrogee. Plaintiff commenced an action against three defendants. Defendant, Javanne A. Johnson (Johnson) states that he had stopped at a stop sign at an intersection of two roadways. Both intersection roadways were controlled by stop signs. Defendant Johnson says he stopped at the stop sign, entered cautiously, but the vehicle coming from his left, failed to stop at the stop sign, and struck his vehicle. The Johnson vehicle was pushed into the parked vehicle of State Farm’s assignee. In opposition, plaintiff has submitted the affidavit of its assignee, which fails to proffer any details how the accident occurred. Apparently, she was not present when her parked vehicle was struck. Plaintiff also submits a certified police report, which relates what the various drivers state. The defendant has made a sufficient showing to demonstrate entitlement to summary judgment. The burden shifts to the plaintiff to present evidentiary proof in admissible form to raise an issue of fact regarding the alleged negligence of the Movant, Thompson v. Abbasi, 15 A.D. 3d 95 (1st Dept. 2005). Information on a police report is admissible as a business record, so long as the report is made based upon the officer’s personal observations, while carrying out police duties. Conversely, information on a police report is inadmissible where the information comes from witnesses not engaged in the police business, Shchab v. Powers, 150 A.D. 3d 918 (2nd Dept. 2017). The plaintiff fails to produce an issue of fact. Accordingly, defendant’s motion for a default judgment, pursuant to CPLR 3212, is granted. The complaint and any cross-claims are dismissed. This constitutes the decision and order of the Court. Dated: April 16, 2024