Matter of Luna v. Motor Veh. Acc. Indem. Corp. ( 2024 )

Matter of Luna v Motor Veh. Acc. Indem. Corp. (2024 NY Slip Op 04521)

Matter of Luna v Motor Veh. Acc. Indem. Corp.

2024 NY Slip Op 04521

Decided on September 24, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 24, 2024
Before: Singh, J.P., Gesmer, Scarpulla, Rodriguez, Michael, JJ.

Index No. 815058/23 Appeal No. 2584 Case No. 2024-00645

[*1]In the Matter of Sammy Luna, Petitioner-Appellant,

v

Motor Vehicle Accident Indemnification Corporation, Respondent-Respondent.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jack W. Lockwood of counsel), for appellant.

Connors & Connors, P.C., Staten Island (Robert J. Pfuhler of counsel), for respondent.

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about November 2, 2023, which denied the petition for leave to bring an action against respondent, unanimously reversed, on the law, without costs, and the petition granted.

The court improperly denied petitioner's motion based on hearsay statements in the Prehospital Care Report, as the report was not certified or authenticated and no proper foundation was provided for it(see Matter of Allstate Ins. Co. [Spadaccini], 52 AD2d 813 [1st Dept 1976]). Therefore, the statements in the Prehospital Care Report cannot create an issue of fact. Even if it were appropriate to consider the report, it would "merely present[] an issue of fact to be resolved in the plenary action" since it is contradicted by the allegations in the petition, petitioner's affidavit, the Household Affidavit, the motor vehicle accident report, and petitioner's deposition testimony concerning whether there was contact between his bicycle and the hit and run vehicle (see Matter of Pena v Motor Veh. Acc. Indem. Corp., 99 AD3d 475, 475 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 24, 2024