Perez v. Exel Logistics, Inc.

278 A.D.2d 213, 717 N.Y.S.2d 278, 2000 N.Y. App. Div. LEXIS 12571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Exel Logistics, Inc., Ruan Leasing Trust Company, and William Hammon appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated October 30, 1999, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

Viewing the evidence in a light most favorable to the plaintiff as the party opposing summary judgment, and giving her the benefit of every favorable inference (see, Sheryll v L & J Hairstylists, 272 AD2d 603; Rockowitz v City of New York, 255 AD2d 434), we agree with the Supreme Court that the plaintiff raised issues of fact which preclude an award of summary judgment to the appellants. Moreover, the court also properly determined that the contemporaneous written and oral statements of an unidentified eyewitness, indicating that the appellants’ truck struck the plaintiff’s automobile, were admissible pursuant to the present sense impression exception to the hearsay rule (see, People v Vasquez, 88 NY2d 561; People v Brown, 80 NY2d 729; People v Gutierez, 248 AD2d 295; Fisch, New York Evidence § 1002 [2d ed]; see also, Jones, Evidence, Civil and Criminal § 28:25 [7th ed]; Cargill Inc. v Boag Cold Stor. Warehouse, 71 F3d 545, 555). Thompson, J. P., Sullivan, Krausman and Florio, JJ., concur.