Upon the foregoing papers, the motion for summary judgment of defendant THE CITY OF [*2]NEW YORK is denied without prejudice to renewal upon the completion of discovery as hereinafter provided.

Plaintiff commenced this action to recover damages for injuries she allegedly sustained when the vehicle in which she was riding as a passenger collided with a vehicle driven by defendant SEAN F. BELL on Staten Island. The vehicle in which plaintiff was riding was owned by defendant JOHN CARELLI and driven by his daughter, defendant DONNA CARELLI. It appears from the papers submitted to the Court that the CARELLI vehicle was traveling eastbound on Katan Avenue when it collided with the BELL vehicle, which was traveling southbound on Eltingville Boulevard. According to plaintiff, the accident was caused by the negligence of both drivers in the operation of their respective vehicles. Also claimed to be liable is THE CITY OF NEW YORK (hereinafter "THE CITY") for failing to replace a missing or fallen stop sign that had been located on Katan Avenue at its intersection with Eltingville Boulevard. Plaintiff maintains that THE CITY knew or should have known prior to the accident that the stop sign had disappeared.

In the current application, THE CITY moves for summary judgment dismissing the complaint and all cross claims against it. According to THE CITY, it did not have the required actual or constructive notice of the purportedly missing stop sign prior to April 15, 2003, the date of the subject motor vehicle accident. As a result, THE CITY contends that it could not have corrected the condition prior thereto. THE CITY further contends that when it conducted a search for all work orders pertaining to a downed stop sign at the subject intersection for the two years prior to and including the date of plaintiff's accident, no work orders could be found pertaining to the site in question.In addition, THE CITY relies upon the deposition transcript of Stuart Schorr, Borough Engineer for Staten Island, who testified that the Department of Transportation ("DOT") was not notified of any problems with the traffic control devices (i.e., stop signs) at the subject location prior to the date of the accident. More particularly, Mr. Schorr testified that the only work performed at this intersection occurred on November 30, 2001, two years prior to the collision, when three "faded" stops signs were replaced. No other work was performed at the intersection by THE CITY between November 30, 2001 and April 15, 2003. In further support of its motion, THE CITY contends that there is no proof that the parties themselves or anyone else familiar with the subject intersection had advance knowledge of the alleged defect. Neither is there proof that the condition existed for any given period of time prior to the accident date. In this regard, THE CITY references the EBT testimony of defendant DONNA CARELLI, who indicated that she frequently traveled the streets in the area where the accident occurred; was generally familiar with the intersection; but never noticed that the stop sign on Katan Avenue at Eltingville Boulevard was missing.

Finally, THE CITY contends that there is no proof of any negligence on its part, e.g., that the allegedly missing stop sign was a proximate cause of the collision. Instead, THE CITY contends that it was the negligence of the respective drivers that caused the accident to occur, and that in the absence of any evidence that THE CITY had prior notice of the alleged defect, it cannot be held liable for the collision.

In opposition, plaintiff contends that summary judgment should be denied due to the fact that numerous questions of fact exist regarding THE CITY's knowledge of the fallen stop sign, as well as its failure to properly maintain the traffic control devices under its control.Plaintiff also contends that THE CITY's motion is premature due to the fact that she has yet to file a note of issue, and has not been given a full opportunity to conduct discovery. In particular, plaintiff has yet to depose the police officer who prepared the police accident report regarding the accident, who seemed to possess personal knowledge of the purported defect. To the extent relevant, Officer Riccardi indicated on his report that the stop sign on the southbound side of Eltingville Boulevard was removed from the ground due to construction and never replaced. According to plaintiff, the accident report containing Officer Riccardi's statement is admissible as an exception to the hearsay rule as an admission against THE CITY's interest. In addition, plaintiff claims that Officer Riccardi's knowledge of the missing traffic sign is evidence of notice to THE CITY. In the alternative, plaintiff contends that the officer's statement that "the stop sign was removed from the [*3]ground and never replaced" is admissible under the business records exception to the hearsay rule because Officer Riccardi was under a duty to report the dangerous conditions existing at the intersection. She also argues that hearsay is admissible in opposition to a summary judgment motion as long as it is not the only proof submitted.

Plaintiff also maintains that THE CITY cannot prove lack of prior notice without showing when the intersection was last inspected. Here, THE CITY has not submitted any proof regarding its last inspection of traffic control devices at the subject location. Plaintiff has also submitted the affidavit of a witness who claims that he travels through the subject intersection every week; is fully familiar with the appearance of the intersection; and believes that the stop sign had been either knocked down or removed during the first two weeks of April, 2003; i.e., no more than 15 days prior to the date of the collision. However, there is no evidence that he reported that condition to a responsible CITY agency.

Finally, plaintiff questions the validity of THE CITY's search of DOT records in the absence of any certification or authentication by the employee who actually conducted the search. As a result, plaintiff argues that there is no evidentiary foundation on which these records may be admitted on the issue of THE CITY's alleged lack of notice.

Defendant DONNA CARELLI also opposes THE CITY's motion on the ground that questions of fact exist regarding THE CITY's knowledge of the downed stop sign. In this regard, MS. CARRELLI relies on the EBT testimony of defendant SEAN BELL, who stated that his parents told him that the subject stop sign had either been knocked down or removed due to construction at the subject intersection. In light of this testimony, MS. CARELLI argues that additional discovery is necessary before the complaint against THE CITY can be dismissed, as it may be chargeable with notice that the stop sign was missing.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once such a showing has been made, the burden shifts to the party opposing the motion to tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial (see Zuckerman v. City of New York, 49 NY2d 557). Accordingly, the Court's function when determining a motion for summary judgment is issue-finding rather than issue-determination (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). Furthermore, it has been stated that the drastic nature of the remedy requires that it not be granted whenever there is any doubt as to the existence of a triable issue (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 231).

In order to hold THE CITY responsible for injuries arising out of the alleged dangerous condition posed by its failure to replace the missing stop sign, it must be shown that THE CITY either created the condition or had actual or constructive notice thereof for a sufficient period of time to permit correction (see Piacquadio v. Recine Realty Corp., 84 NY2d 967; Gordon v. American Museum of Natural History, 67 NY2d 836; Martinez v. Khaimov, 74 AD3d 1031, 1033; Brown v. City of New York, 154 AD2d 325; Lewis v. Metropolitan Transp Auth; 99 AD2d 246, 250, affd 64 NY2d 670). Here, THE CITY has submitted sufficient proof to establish prima facie that it did not remove or have actual or constructive notice of the alleged missing sign through, e.g., the EBT testimony of DOT's Deputy Borough Engineer and the parties themselves, none of whom professed any knowledge of the missing stop sign prior to the date of the subject accident. Nevertheless, the motion must be denied in order to allow plaintiff to complete discovery.

In particular, plaintiff should be afforded sufficient time to depose Officer Riccardi, who responded to the scene of the accident and authored the required police accident report. Although, as a general rule, a police report is regarded as hearsay and therefore inadmissible (see Casey v. Tierno, 127 AD2d 727), the statements in a report which are based on the officer's personal observations may be admissible under the business record exception to the hearsay rule (see CPLR 4518[a]; see also Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 AD3d 750). Here, it is unclear from the police accident report whether Officer Riccardi's statement as to the removal of the subject stop sign was based on his personal knowledge; when it first came to his attention and [*4]whether or not he had officially reported its absence to anyone in authority. On the basis of his answers to, e.g., these questions, plaintiff may be able to establish that THE CITY is chargeable with actual or constructive notice of the defect (cf. Applebee v. State of New York, 308 NY 502; Matter of Continental Ins. Co. v. City of Rye, 257 AD2d 573). In any event, where, as here, plaintiff has not had the opportunity to depose a witness who is likely to possess personal knowledge of a material fact, the hearsay nature of e.g., an accident report may be sufficient to defeat summary judgment (see Friends of Animals a. Associated Fur Mfrs., 46 NY2d 1065, 1068; Zuckerman v. City of New York, 49 NY2d at 562).

Finally, since the note of issue has yet to be filed, THE CITY will suffer no substantial prejudice if plaintiff is permitted to depose this witness and complete any other outstanding discovery.

Accordingly, it is

ORDERED that the motion for summary judgment of defendant THE CITY OF NEW is denied without prejudice to renewal upon the completion of discovery as herein provided.

E N T E R,

/s/

Hon. Thomas P. Aliotta

J.S.C.

Dated: January 14, 2011