Plaintiff Thelma Smalls brings suit in this trip and fall action against the New York City Transit Authority ("Transit Authority"). Plaintiff was injured after exiting a Transit Authority bus on March 26, 2006. Plaintiff alleges that she fell in a pot hole located in the street just outside the bus's door. The Transit Authority contends that the bus operator was unable to enter the bus stop because two cars were illegally parked in the stop, and, as a result, the bus operator was forced to discharge passengers in the street.

This action was commenced in April 2006, with service of a notice of claim upon the Transit Authority. In January 2007, the Transit Authority brought a third party action against the City of New York . In September, 2007, the Transit Authority commenced a second third-party action against Sondra Butchin ("Butchin") and Mazhar Awan ("Awan"), the alleged owners of the illegally parked cars that prevented the bus from entering the bus stop.

Butchin and Awan now move and cross move for summary judgment. They argue that the Transit Authority does not offer sufficient evidence to establish their presence at the site of the accident.

Additionally, defendants contend that even if they were present, they cannot be considered the proximate cause of the accident.

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. The moving party must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Zuckerman v. City of New York, 49 NY2d 557 [1990). Butchin and Awan have not met that burden. Although they have asserted through an affidavit and deposition testimony, respectively, that they were not present at the location at the time of the crash, they have failed to eliminate all questions of fact surrounding these statements.

Bus Operator Sandra Day ("Day") testified that she recorded the make and license plate numbers of the illegally parked vehicles on a scrap paper at the time of the incident. Although this piece of paper is now lost, Day had verbally communicated the information to her dispatcher, who in turn read it back to her for confirmation before entering it into his report. Neither defendant denies contemporaneous ownership of the vehicles identified in the dispatcher's report. Defendant Butchin provides only an affidavit that swears that she has "no recollection of any incident involving Thelma R. Smalls on March 6, 2006" or "being parked next to a bus stop on that date." (Affidavit of Sondra Butchin, annexed to Exhibit D of Butchin's Motion). Third-party defendant Awan testified during deposition that, to his knowledge, he did own the car described in the dispatcher's report and was in the area in question at some point on the day of the accident. (Deposition of Mahzar Awan, pg. 13, annexed as Exhibit H to the Transit Authority's Affirmation in Opposition). As such, neither of the third-party defendants' statements establish that there are no triable issues of fact so as to warrant granting summary

judgment.

Although defendants claim that in the absence of the original record such evidence is only [*2]hearsay, the Court finds that since this information was properly recorded in the normal course of

business, the dispatcher's report is admissible. (Bracco v. Mabstoa, 117 AD2d 273 [1st Dept 1986], Flynn v. Manhattan and Bronx Surface Transit Operating Authority, 94 AD2d 617 [1st Dept. 1983]). Such business records are considered to be generally reliable, and this reliability is enhanced by the fact that the dispatcher's report was entered on a form routinely used for this purpose. (People v. Kennedy, 68 NY2d 569, 579 [1986].

The issue of whether the cars were the proximate cause of the plaintiff's injury is a matter for the jury. It is well settled that "owners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact on the issues of foreseeability and proximate cause unique to the particular case." (Reuter v. Rogers, 232 AD2d 619 [2nd Dept 1996], Sommersall v. New York Tel. Co., 52 NY2d 157, 167 [1981]). While the instant case involves a trip and fall rather than a vehicle accident, it remains a question for the jury as to whether the illegally parked cars, which forced the passengers to disembark in the street, were the proximate cause of the plaintiff's fall. The question of the relative culpability of the Transit Authority, defendants Butchin and Awan, and the plaintiff herself, all of whom could have reasonably played a role in the cause of this accident, must await resolution by a finder of fact. (Ferrer v Harris, 55 NY2d 285 [1982], Petrone v County of Nassau, 305 AD2d 569 [2d Dept 2003], In re Yavkina, 60 AD3d 669 [2d Dept 2009]).

Accordingly the motion and cross motion for summary judgment by second third-party defendants Butchin and Awan are denied.

The foregoing constitutes the decision and Order of the Court.

Robert J. Miller

J.S.C.

June 24, 2009