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Exception To Hearsay Rule Used To Defeat Summary Judgment In New York

October 1, 2009

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In Jara v Salinas-Ramirez, the Appellate Division, First Department applied the present sense impression exception to the hearsay rule to deny the defendant's motion for summary judgment.
The case involves a hit and run automobile accident. After the accident, the plaintiff followed the defendant's vehicle for three blocks and then called the police. When he returned to the scene of the accident, a man and a woman approached the plaintiff and advised him that they wrote down the license plate number of the defendant's vehicle. The man provided the plaintiff with the number on a piece of paper and left the scene.
When the police arrived at the scene, the woman gave the license plate number to the police. The license plate number given to the police is the same number the man wrote on a piece of paper. There was no dispute that the license plate number matched the defendant's van. However, the defendant moved for summary judgment because the plaintiff no longer has the piece of paper given to him by the man, he has not been able to locate the female witness and there is no police accident report in the record.
However, for purposes of opposing the defendant's motion for summary judgment, plaintiff's testimony regarding the statements allegedly made by the two witnesses identifying the license plate number of the offending vehicle were sufficiently corroborated by his other testimony, accurately describing the offending vehicle as a dark-colored van and asserting that the woman made her statement to the police at the scene of the accident ten minutes after the accident, to invoke the "present sense impression" exception to the hearsay rule and raise a triable issue of fact as to whether defendant's vehicle was involved in the accident.
The court noted that this ruling was not to be construed that the hearsay statements were to be admissible at trial.
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Thanks to Maju Varghese for his contribution to this post.

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