NY Civil Trial Practice Update: Admissibility of Uncertified Police Reports
The Appellate Division of the Supreme Court of New York, Second Department’s recent ruling in Yassin v. Blackman, 188 A.D.3d 62 (2d Dep’t 2020) abrogates prior case law, which had previously held a party’s admission in an uncertified police report was admissible. Following Yassin, an uncertified police accident report no longer constitutes admissible evidence, absent a proper foundation for its admissibility. The Yassin Court, however, specifically noted that its holding involved a situation where a party affirmatively proffered an uncertified police accident report in support of a motion for summary judgment.
By way of background, Yassin involved a personal injury action, wherein plaintiff alleged his taxi was negligently struck by a truck (owned and operated by separate defendants). The Supreme Court, Kings County granted plaintiff’s summary judgment motion on liability, supported by plaintiff’s affidavit and a copy of an uncertified police report. In brief, plaintiff’s affidavit averred he did not jut in front of the truck, in any fashion, but was stopped at a traffic light for a few seconds when he was rear-ended. The uncertified police accident report contained the trucker’s alleged admission that he side-swiped plaintiff’s taxi in an attempted pass. The trucker’s affidavit was submitted in opposition, essentially claiming plaintiff’s taxi was double-parked, but then cut off the trucker.
On appeal, defendants contended the trucker’s affidavit raised a triable issue of fact as to whether plaintiff’s taxi cut off the truck. Plaintiff responded that the trucker’s affidavit should be disregarded as a feigned attempt to avoid the consequences of his admission contained in the police accident report. In reply, defendants argued, inter alia, the police accident report was inadmissible because it was not certified.
The Appellate Division, Second Department reversed the trial court’s summary judgment order concluding triable questions of fact remained as to the trucker’s negligence. The Court discussed that statements recorded in police accident reports involve two levels of hearsay, each of which must satisfy a hearsay exception to render the statement in the report admissible.
First, the report itself must be admissible. Properly certified police reports are admissible where the report is based upon the officer’s personal observations while carrying out police duties. CPLR 4518 (c) provides that the foundation for the admissibility of police reports (and other state records) may be laid through a proper certification. CPLR 4518 (c) is governed by the same standards as the business record exception. Thus, the certification must set forth the record was made in the regular course and it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event – or within a reasonable time, thereafter. Second, assuming there is a properly certified police accident report, the statement(s) contained within the report must satisfy a separate hearsay exception.
Thus, the Court concluded that since the police report was not certified to begin with, and since a foundation for its admissibility had not been laid by some other method, the report and its contents constituted inadmissible hearsay. While it is true a party’s admission is an exception to the hearsay rule, the Court declared that a party’s admission contained within a police accident report may not be bootstrapped into evidence in this fashion.
To avoid the evidentiary issues discussed in Yassin, New York trial practitioners seeking to proffer police accident reports and other business records should ensure these documents are certified.
Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes.