In re Rhodes

203 A.D.2d 46, 609 N.Y.S.2d 612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1994
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Stuart C. Cohen, J.), entered on or about May 27, 1993, which, after a hearing, denied the petition seeking permission to commence an action against respondent Motor Vehicle Accident Indemnification Corporation (MVAIC), and adjudged that the vehicle which struck petitioner was owned by additional respondent Biggs, affirmed, without costs.

Petitioner brought this petition for leave to sue MVAIC, or for a determination that he was struck by a vehicle belonging to additional respondent Biggs, and insured by additional respondent Liberty. The court properly received in evidence the police report reciting that petitioner had reported the offending vehicle as bearing the license plate number of the vehicle owned and insured by the additional respondents. We agree with the dissent that the statement contained in the police report is not admissible as a declaration against interest or under the business record exception. However, it did constitute an admission, inconsistent with the allegations of the petition against MVAIC (Reed v McCord, 160 NY 330; Richardson, Evidence §§ 209, 214 [Prince 10th ed]). The weight to be given to petitioner’s denial that he made the statement was a matter for the trier of fact (Gangi v Fradus, 227 NY 452). However, given petitioner’s failure to call essential witnesses, and his ambivalent responses regarding attempts to locate the friend who was allegedly the source of the utterance, the court was entitled to credit the evidence on its face.

The declaration that the offending vehicle was owned by additional respondent Biggs was responsive to the issues pleaded and presented to the court for determination. Concur —Murphy, P. J., Rosenberger, Asch and Williams, JJ.