Aetna Casualty & Surety Co. v. Stone

Appellate Division of the Supreme Court of New York

Aetna Casualty & Surety Co. v. Stone

170 A.D.2d 599, 566 N.Y.S.2d 374, 1991 N.Y. App. Div. LEXIS 2293

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 19, 1991

StatusPublished

Cited by4 cases

This text of 170 A.D.2d 599 (Aetna Casualty & Surety Co. v. Stone) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aetna Casualty & Surety Co. v. Stone, 170 A.D.2d 599, 566 N.Y.S.2d 374, 1991 N.Y. App. Div. LEXIS 2293 (N.Y. Ct. App. 1991).

Pincite

Opinion

In a proceeding pursuant to CPLR article 75 to stay the arbitration of an uninsured motorist claim, the appeal is from a judgment of the Supreme Court, Queens County (Kassoff, J.), dated May 31, 1989, which, after a hearing, granted the application and stayed arbitration.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a new hearing on the issue of physical contact with an alleged hit-and-run vehicle.

It was reversible error to admit into evidence a copy of a police accident report, since the investigating officer did not witness the accident and could not identify with any specificity the sources of hearsay information contained in the report (see, Gagliano v Vaccaro, 97 AD2d 430; Avram v Haddad, 88 AD2d 942; Clarke v Nadel, 50 AD2d 851). For similar reasons, the officer’s opinion as to the cause of the accident based upon inadmissible hearsay, should also have been stricken (see, Casey v Tierno, 127 AD2d 727). Since the court based its findings of credibility and its determination of the facts partly on the basis of this erroneously admitted evidence, a new hearing is required.

Moreover, the court erred in finding that the appellant had failed to report the hit-and-run accident to the police within 24 hours after the accident. The record shows that the police were on the scene within minutes of the accident and that a police accident report was completed the same day. It is [600]*600immaterial that the report failed to make reference to physical contact (see, Matter of MVAIC [Lupo], 18 AD2d 717, affd 13 NY2d l017;Matter of Empire Mut. Ins. Co.[Zelin], 120 AD2d 365), or failed to specifically label the accident as a "hit-and-run” (see, Matter of Boxill v MVAIC, 33 AD2d 13; Matter of Hanavan [MVAIC], 33 AD2d 1100). Bracken, J. P., Kooper, Harwood and Balletta, JJ., concur.

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In a proceeding pursuant to CPLR article 75 to stay the arbitration of an uninsured motorist claim, the appeal is from a judgment of the Supreme Court, Queens County (Kassoff, J.), dated May 31, 1989, which, after a hearing, granted the application and stayed arbitration.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a new hearing on the issue of physical contact with an alleged hit-and-run vehicle.

It was reversible error to admit into evidence a copy of a police accident report, since the investigating officer did not witness the accident and could not identify with any specificity the sources of hearsay information contained in the report (see, Gagliano v Vaccaro, 97 AD2d 430; Avram v Haddad, 88 AD2d 942; Clarke v Nadel, 50 AD2d 851). For similar reasons, the officer’s opinion as to the cause of the accident based upon inadmissible hearsay, should also have been stricken (see, Casey v Tierno, 127 AD2d 727). Since the court based its findings of credibility and its determination of the facts partly on the basis of this erroneously admitted evidence, a new hearing is required.

Moreover, the court erred in finding that the appellant had failed to report the hit-and-run accident to the police within 24 hours after the accident. The record shows that the police were on the scene within minutes of the accident and that a police accident report was completed the same day. It is [600]*600immaterial that the report failed to make reference to physical contact (see, Matter of MVAIC [Lupo], 18 AD2d 717, affd 13 NY2d l017;Matter of Empire Mut. Ins. Co.[Zelin], 120 AD2d 365), or failed to specifically label the accident as a "hit-and-run” (see, Matter of Boxill v MVAIC, 33 AD2d 13; Matter of Hanavan [MVAIC], 33 AD2d 1100). Bracken, J. P., Kooper, Harwood and Balletta, JJ., concur.

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170 A.D.2d 599, 566 N.Y.S.2d 374, 1991 N.Y. App. Div. LEXIS 2293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-stone-nyappdiv-1991.

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