Kaba v Bookman 2024 NY Slip Op 32598(U) July 31, 2024 Supreme Court, New York County Docket Number: Index No. 159181/2021 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22M Justice ---------------------------------------------------------------------------------X I DEX 0. 159181/202 1 IBRAHIM A BRICO KABA, MA RIAM T SYLLA MOTION DATE 05/ 13/2024 Plaintiff, MOTION SEQ. NO. ------'-- 00.:....1_ __ - V -
DA YID A BOOKMAN, JOHN DOE, DECISION+ ORDER ON MOTION Defendant.
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The fo llowing e-filed documents, listed by NYSCEF document number (Motion 00 1) 12, 13, 14, 15, 16, 17, 18, 19, 21 , 22,23, 24,25, 26, 27, 28 were read on this motion to/for JU DGMENT - SUMMARY
Upon the foregoing documents, the motion by Plaintiffs pursuant to CPLR 3212 on the
issue of liability and to dismiss Defendant's affirmative defense of Plaintiffs' culpable conduct
(Third Affirmative Defense) is decided as follows:
Plaintiffs seek to recover for injuries allegedly sustained as a result of a June 25, 2020
motor vehicle accident between a vehicle owned and operated by Plaintiff Ibrahima Brico Kaba
("Kaba") within which Plaintiff Mariam T. Sy lla (" Sylla") was a passenger and a vehicle owned
and operated by Defendant David A. Bookman ("Defendant") and "John Doe" (name being
fictitious, true name unknown). The alleged accident occurred at the intersection of 153rd Street
and Broadway.
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material
issues of fact from the case (Winegrad v N Y Univ. Med. Ctr. , 64 NY2d 851 [1985]). Once such
entitlement has been demonstrated by the moving party, the burden shifts to the party opposing
the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial
of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v New York,
49 N Y2d 557, 560 [1980]). 159 181/2021 KA BA. IBRAHIMA BRJCO ET AL vs. BOOK~IA . DAVID A ET AL Page I of4 Motion No. 001
[* 1] 1 of 4 INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
As an initial matter, in support of the motion Plaintiffs partially rely on a copy of an
uncertified police accident report. 1 In opposition, Bookman contends that the police report is
inadmissible because it is uncertified and was written without the presence of Bookman. The
Court finds that as the police report submitted by Plaintiff was not certified and bore upon the
ultimate issues of fact, it is inadmissible (Hazzard v Burrowes, 95 AD3d 829 [2d Dept 20 12]
[police accident report was inadmissible, as it was not certified as a business record and bore upon
the ultimate issues of fact to be decided by the jury]).
In support of their motion, Plaintiffs also rely on Examinations Before Trial of Kaba and
Sylla. In Kaba's Examination Before Trial ("EBT"), he testified that he was traveling in the right
lane on Broadway in his vehicle of which his sister, Sylla, was a passenger. Kaba testified that he
moved his vehicle into the left lane approximately at 149th Street and moved back into the right
lane because of construction and that the subject accident happened when his vehicle was
approaching 154th Street with a green light while moving approximately twenty to twenty-five
miles per hour while he had his right foot on the gas pedal. Kaba further testified that a vehicle
made impact with the rear of his and that he did not see the vehicle before the accident, but the
other vehicle involved in the accident was a red car and that Kaba has the other vehicle's plate
number as well as pictures of the car and of the person driving the car and " his girlfriend."
Following the accident, Kaba testified that he drove 200 to 300 feet on Broadway and
pulled to the side and the other vehicle pulled up to the back of Kaba' s vehicle, the driver and
passenger of the othe r car then got out of the vehicle. Kaba further testified that the woman
passenger") was arguing with Sylla and the other man was arguing with Kaba, and that Kaba then
called 91 1 and the driver and passenger of the other vehicle returned to the vehicle and drove away.
In Sylla's EBT, she testified that she was seated in the rear of Kaba's vehicle behind the
passenger seat and that the vehicle was in the right lane traveling from 147th Street to 153rd Street
with construction on the side of Broadway, but it was not blocking any lanes. Sylla testified that
1 The police report marks vehicle 2 as a 2013 Ford sedan with New York license plate nu mber JPD82 I6. 159181/2021 KABA, IBRAH IMA BRICO ET AL vs. BOOKMAN, DAVID A ET AL Page 2 of4 Motion No. 001
[* 2] 2 of 4 INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
she realized she was involved in an accident when her head and back hit the "chair" in the vehicle
and that she did not see the other vehicle involved in the accident before the accident but saw it
after, stating that it was a small, gray vehicle. She further testified that when the vehicle she was
a passenger in was impacted it moved forward but did not come into contact with anything.
Following the accident, Sylla testified that Kaba got out of the vehicle and stood by the
driver's side of his vehicle and the other driver came towards Kaba and the driver and the woman
passenger insulted Kaba and Sylla. Sy lla testified that Kaba called the police and when he hung
up the phone the other driver insulted Kaba and left the scene with the woman passenger.
In opposition, Defendant relies on his affidavit in which he avers that at the time of the
accident he was the owner of the 2013 Ford with New York license plate JPD8216 alleged to be
involved in the subject accident. Defendant further avers that at no point on the subject date or in
the subject area of the alleged accident did his 2013 Ford come into contact with a 2015 Toyota
Taxi with license plate T775479C (Kaba' s vehicle).
In reply, Plaintiffs contend that a one sentence statement that there was no contact should
not raise a question of fact and that Defendant failed to provide a counter statement of facts. In
support of their reply, Plaintiffs submit a photo of the rear of Plaintiffs ' vehicle, which Plaintiffs
contend shows damage.
Plaintiffs fail to satisfy their prima facie burden. Plaintiff Kaba testified that he has
photographs of the vehicle involved in the subject accident, its license plate, the driver of the
vehicle, and the vehicle' s passenger. However, Plaintiffs do not submit these photographs in
support of their motion and rely solely on the uncertified police report which, on its own, is
insufficient to establish prima facie entitlement to summary judgment (see Torres v Kalla.ff, 128
AD3d 1052 [2d Dept 2015] [holding that Plaintiff's submission of an uncertified police report to
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Kaba v Bookman 2024 NY Slip Op 32598(U) July 31, 2024 Supreme Court, New York County Docket Number: Index No. 159181/2021 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22M Justice ---------------------------------------------------------------------------------X I DEX 0. 159181/202 1 IBRAHIM A BRICO KABA, MA RIAM T SYLLA MOTION DATE 05/ 13/2024 Plaintiff, MOTION SEQ. NO. ------'-- 00.:....1_ __ - V -
DA YID A BOOKMAN, JOHN DOE, DECISION+ ORDER ON MOTION Defendant.
---------------------------------------------------------------------------------X
The fo llowing e-filed documents, listed by NYSCEF document number (Motion 00 1) 12, 13, 14, 15, 16, 17, 18, 19, 21 , 22,23, 24,25, 26, 27, 28 were read on this motion to/for JU DGMENT - SUMMARY
Upon the foregoing documents, the motion by Plaintiffs pursuant to CPLR 3212 on the
issue of liability and to dismiss Defendant's affirmative defense of Plaintiffs' culpable conduct
(Third Affirmative Defense) is decided as follows:
Plaintiffs seek to recover for injuries allegedly sustained as a result of a June 25, 2020
motor vehicle accident between a vehicle owned and operated by Plaintiff Ibrahima Brico Kaba
("Kaba") within which Plaintiff Mariam T. Sy lla (" Sylla") was a passenger and a vehicle owned
and operated by Defendant David A. Bookman ("Defendant") and "John Doe" (name being
fictitious, true name unknown). The alleged accident occurred at the intersection of 153rd Street
and Broadway.
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material
issues of fact from the case (Winegrad v N Y Univ. Med. Ctr. , 64 NY2d 851 [1985]). Once such
entitlement has been demonstrated by the moving party, the burden shifts to the party opposing
the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial
of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v New York,
49 N Y2d 557, 560 [1980]). 159 181/2021 KA BA. IBRAHIMA BRJCO ET AL vs. BOOK~IA . DAVID A ET AL Page I of4 Motion No. 001
[* 1] 1 of 4 INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
As an initial matter, in support of the motion Plaintiffs partially rely on a copy of an
uncertified police accident report. 1 In opposition, Bookman contends that the police report is
inadmissible because it is uncertified and was written without the presence of Bookman. The
Court finds that as the police report submitted by Plaintiff was not certified and bore upon the
ultimate issues of fact, it is inadmissible (Hazzard v Burrowes, 95 AD3d 829 [2d Dept 20 12]
[police accident report was inadmissible, as it was not certified as a business record and bore upon
the ultimate issues of fact to be decided by the jury]).
In support of their motion, Plaintiffs also rely on Examinations Before Trial of Kaba and
Sylla. In Kaba's Examination Before Trial ("EBT"), he testified that he was traveling in the right
lane on Broadway in his vehicle of which his sister, Sylla, was a passenger. Kaba testified that he
moved his vehicle into the left lane approximately at 149th Street and moved back into the right
lane because of construction and that the subject accident happened when his vehicle was
approaching 154th Street with a green light while moving approximately twenty to twenty-five
miles per hour while he had his right foot on the gas pedal. Kaba further testified that a vehicle
made impact with the rear of his and that he did not see the vehicle before the accident, but the
other vehicle involved in the accident was a red car and that Kaba has the other vehicle's plate
number as well as pictures of the car and of the person driving the car and " his girlfriend."
Following the accident, Kaba testified that he drove 200 to 300 feet on Broadway and
pulled to the side and the other vehicle pulled up to the back of Kaba' s vehicle, the driver and
passenger of the othe r car then got out of the vehicle. Kaba further testified that the woman
passenger") was arguing with Sylla and the other man was arguing with Kaba, and that Kaba then
called 91 1 and the driver and passenger of the other vehicle returned to the vehicle and drove away.
In Sylla's EBT, she testified that she was seated in the rear of Kaba's vehicle behind the
passenger seat and that the vehicle was in the right lane traveling from 147th Street to 153rd Street
with construction on the side of Broadway, but it was not blocking any lanes. Sylla testified that
1 The police report marks vehicle 2 as a 2013 Ford sedan with New York license plate nu mber JPD82 I6. 159181/2021 KABA, IBRAH IMA BRICO ET AL vs. BOOKMAN, DAVID A ET AL Page 2 of4 Motion No. 001
[* 2] 2 of 4 INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
she realized she was involved in an accident when her head and back hit the "chair" in the vehicle
and that she did not see the other vehicle involved in the accident before the accident but saw it
after, stating that it was a small, gray vehicle. She further testified that when the vehicle she was
a passenger in was impacted it moved forward but did not come into contact with anything.
Following the accident, Sylla testified that Kaba got out of the vehicle and stood by the
driver's side of his vehicle and the other driver came towards Kaba and the driver and the woman
passenger insulted Kaba and Sylla. Sy lla testified that Kaba called the police and when he hung
up the phone the other driver insulted Kaba and left the scene with the woman passenger.
In opposition, Defendant relies on his affidavit in which he avers that at the time of the
accident he was the owner of the 2013 Ford with New York license plate JPD8216 alleged to be
involved in the subject accident. Defendant further avers that at no point on the subject date or in
the subject area of the alleged accident did his 2013 Ford come into contact with a 2015 Toyota
Taxi with license plate T775479C (Kaba' s vehicle).
In reply, Plaintiffs contend that a one sentence statement that there was no contact should
not raise a question of fact and that Defendant failed to provide a counter statement of facts. In
support of their reply, Plaintiffs submit a photo of the rear of Plaintiffs ' vehicle, which Plaintiffs
contend shows damage.
Plaintiffs fail to satisfy their prima facie burden. Plaintiff Kaba testified that he has
photographs of the vehicle involved in the subject accident, its license plate, the driver of the
vehicle, and the vehicle' s passenger. However, Plaintiffs do not submit these photographs in
support of their motion and rely solely on the uncertified police report which, on its own, is
insufficient to establish prima facie entitlement to summary judgment (see Torres v Kalla.ff, 128
AD3d 1052 [2d Dept 2015] [holding that Plaintiff's submission of an uncertified police report to
demonstrate the license plate number of the vehicle Plaintiff alleged was involved in the accident
and then left the scene is inadmissible hearsay and does not satisfy Plaintiffs prima facie burden];
see Narvaez v NYRAC, 290 AD2d 400 [1st Dept 2002] [finding that a hearsay report of the
offending vehicle' s license plate number as the only evidence brought in opposition to Defendant's
159181/2021 KABA, IBRAHIMA BRICO ET AL vs. BOOKMAN, DAVID A ET AL Page 3 of4 Motion No. 001
[* 3] 3 of 4 INDEX NO. 159181/2021 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/29/2024
summary judgment motion 1s inadequate to survive summary judgment in absence of any
admissible evidence linking Defendant and the vehicle]; see also Rodriguez v Sit, 169 AD3d 406
[1st Dept 2019]). Even if the Court found that Plaintiffs made a prima facie showing, Defendant
raises an issue of fact sufficient to preclude summary judgment in Plaintiff's favor (id.). The
motion is denied. Accordingly, it is
ORDERED that the motion by Plaintiffs for summary judgment on the issue of liability
and dismissing Defendant's affirmative defense of culpable conduct is denied; and it is further
ORDERED that within 30 days of entry, Plaintiffs shall serve a copy of this Decision and
Order upon Defendant with Notice of Entry.
This constitutes the Decision and Order of the Court.
7/25/2024 DATE
~ C HEC K ONE: CASE DISPOSED NON-Fl 'AL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SE1TLE ORDER SUBMIT ORDER C HEC K IF APPROPRIATE: I 'CLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
159181/2021 KABA, IBRAHIMA BRICO ET AL vs. BOOKMAN, DAVID A ET AL Page 4 of 4 Motion No. 00 I
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