Batista v. Santiago

25 A.D.3d 326, 807 N.Y.S.2d 340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered August 24, 2004, which, in an action for personal injuries sustained when the vehicle in which plaintiff was a passenger was hit in the rear by defendant-respondent’s vehicle, denied plaintiffs motion for summary judgment, unanimously affirmed, without costs.

Plaintiff did not support the motion with evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), but instead relied on an attorney’s affirmation (see id. at 563) and hearsay portions of a police accident report (see Conners v Duck's Cesspool Serv., 144 AD2d 329 [1988]). Plaintiff did submit his verified complaint, but that merely stated that the host car was “situated” at the intersection, not stopped, and that defendant’s car “made contact” with the host car without indicating that the contact was from behind. The only sworn statement of a rear-end collision in support of the motion by a person with knowledge of the facts is plaintiff’s reply affidavit, which may not be considered for the purpose of showing prima facie entitlement to summary judgment (see Azzopardi v American Blower Corp., 192 AD2d 453 [1993]; cf. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Concur—Saxe, J.P., Marlow, Williams, Catterson and Malone, JJ.