Kaba v. Bookman

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

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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

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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

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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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