Chubb & Son, Inc. v. Riverside Tower Parking Corp.

267 A.D.2d 128, 700 N.Y.S.2d 153, 1999 N.Y. App. Div. LEXIS 12977

Opinion

—Order, Supreme Court, New York County (Emily Goodman, J.), entered May 15, 1998, which, inter alia, denied plaintiffs motion for summary judgment as to liability, unanimously affirmed, without costs.

In this action by a subrogation plaintiff to recover the value of a vehicle bailed to defendant’s parking garage, defendant submitted competent proof in opposition to plaintiffs summary judgment motion, showing that the vehicle was stolen at gunpoint, thus raising a triable issue in response to plaintiffs prima facie case. The police report of the theft was based on information from defendant’s now deceased garage attendant, who had a business duty imposed by his employer to report such events to the police (see, CPLR 4518 [a]; Matter of Leon RR, 48 NY2d 117, 122-123). Given the admissibility of the police report, a more detailed signed statement of the criminal incident by the deceased employee to what appears to be an insurance investigator, as well as two depositions containing considerable hearsay, were also properly considered in opposition to the motion (see, Guzman v L.M.P. Realty Corp., 262 AD2d 99; Koren v Weihs, 201 AD2d 268). Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Buckley, JJ.