Opinion
CV-093238-10/KI.
Decided May 5, 2011.
Larry Dobson, Plaintiff Pro Se.
Greenfield Ruhl, Esqs., Attorneys for Defendants.
By: Charles Ruhl, Esq., Mineola, NY.
Plaintiff commenced this action seeking to recover the sum of damages caused to his automobile caused by the alleged negligent operation of defendant's vehicle for $10,000.00.
A bench trial of the above action took place before the undersigned on April 11, 2011. After considering and weighing the testimony and documentary evidence, and having had the opportunity to assess the demeanor credibility of the witnesses, the Court makes the following findings of fact and conclusions of law:
As shown below, the sole question for this Court to determine is whether the Kelly Blue Book is admissible into evidence over the hearsay objection to establish a car's value. This Court answers the question in the affirmative.
Plaintiff testified that the operator of defendant's vehicle collided into plaintiff's vehicle on July 3, 2010 at the intersection of Rogers Avenue and Church Avenue causing damage to plaintiff's vehicle. The driver of defendant's vehicle fled the scene, and the keys were in the ignition. Plaintiff displayed pictures of his vehicle showing extensive damage to car. Although defendant moved to strike the testimony regarding the presence of the defendant's car keys in the ignition, this court received the evidence as a party admission ( People v Valdes , 66 AD3d 925 , 926 [2d Dept 2009]; People v Johnson, 93 NY2d 254; People v Thomas, 300 AD2d 1034, 1035 [4th Dept 2002]).
Because "[p]arty admissions constitute an exception to the hearsay rule ( People v Thomas, 300 AD2d at 1035)," plaintiff established that it was "a friend [who was] driving the vehicle." Thus, plaintiff established defendant's vicarious liability under VTL § 388. Furthermore, VTL § 1210(a) requires a driver to remove "the key from the vehicle." Thus, defendant is also liable under this statute by virtue of his admission ( see Sydnor v Home Depot, U.S.A., Inc. , 74 AD3d 1185, 1188 [2d Dept 2010]; Scott v Kass , 48 AD3d 785 [2d Dept 2008]; see also Restatement (Second) of Torts § 302B).
Defendant testified that he left his keys locked in the office. However, the defendant's wife stated, but later recanted, that the keys were left in the ignition. Thus, this Court finds defendant's testimony to be unavailing and lacking in both weight and credibility ( Fekry v New York City Transit Authority, 75 AD3d 616, 617 [2d Dept 2010]; see also Armentano v Broadway Mall Properties, Inc. , 70 AD3d 614 , 617 [2d Dept 2010]).
Plaintiff entered into evidence, as his exhibit 1, pictures of his automobile after the accident. They showed deployed air bags, a shattered windshield, and a severe dent on the driver's side of the car. Thus, the nature and extent of the property damage was a matter well "within the ordinary experience and knowledge of laymen" ( Gordineer v Gallagher, 160 AD2d 672, 673 [2d Dept 1990]; People v Dax, 233 AD2d 177 [1st Dept 1996]; see also People v Casco , 77 AD3d 848 [2d Dept 2010]). "Automobiles are so numerous, so many people have large experience with them, and so many [people] interest themselves in . . . cars, that it is unreal to say that only a particularly qualified expert can" determine the nature and extent of damage to an automobile ( Senecal v Drollette, 304 NY 446, 449 [1952]; see also Soto v New York City Transit Authority, 6 NY3d 487, 493).
Regarding towing and storage fees, which were offered into evidence as plaintiff's exhibit 2, this Court disregards the evidence ( Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2d Dept 2010]; see also People v Lane , 7 NY3d 888 , 890; Umanzor v Zehentner , 80 AD3d 750 [2d Dept 2011]). Further, plaintiff stated that his son paid the bill, which makes such evidence further unavailing ( see e.g. Greenstein v R R of G.C., Inc. , 50 AD3d 637 [2d Dept 2008]; see also Katz v Gangemi , 60 AD3d 819 [2d Dept 2009]).
To establish the vehicle's value, plaintiff offered the Kelly Blue Book under CPLR 4533 into evidence as his exhibit 3 to which defendant objected. Given the sparse New York State case law on the subject, this Court looks to other jurisdictions for guidance. In New Jersey, The Superior Court, Appellate Division held in Romeo v KNK Interiors, Inc. ( 2008 WL 960414) that the Kelly Blue Book was admissible as a market report under New Jersey's Rules of Evidence 803(c)(17). Similarly, the Bankruptcy Court of the Eastern District of Pennsylvania held that the Kelly Blue Book was also admissible as a market report under the Federal Rules of Evidence 803(17) ( see also State v Erickstad, 620 NW2d 136, 145 [Sup Ct, North Dakota 2000]).
With respect to the market report exception to the hearsay rule, New York's CPLR 4533 is analogous to FRE 803(17). Thus, a report, like the Kelly Blue Book, is admissible evidence under CPLR 4533 because the Court takes judicial notice (CPLR 4511[b]; Kingsbrook Jewish Medical Center v Allstate Ins. Co. , 61 AD3d 13 , 19 [2d Dept 2009]) that the Kelly Blue Book is "[a] report of a regularly organized stock or commodity market published in a newspaper or periodical of general circulation or in an official publication or trade journal" (CPLR 4533). Thus, it "is admissible in evidence to prove the market price or value of any article regularly sold or dealt in on such market" (CPLR 4533). However, the trier of fact is free to accept or reject the evidence. Moreover, it is well settled law that "property valuation is not strictly a subject for expert testimony, opinion testimony by a lay witness is competent to establish the value of the property" ( People v Sheehy, 274 AD2d 844, 845 [3d Dept 2000]). Accordingly, plaintiff's exhibit 3, the Kelly Blue Book, is admissible to establish the value of a vehicle and plaintiff's damages in the amount of $8,860.00 ( see e.g. McCormick on Evidence § 321 [6th Ed]; Auld v Estridge, 86 Misc 2d 895, 906-907 [Sup Ct, Nassau County 1976]).
Based on the above, it is hereby
ORDERED that the judgement be entered in favor of plaintiff and against defendant in the amount of $8,860.00 together with statutory costs, disbursements, and interest from July 3, 2010.
The foregoing constitutes the decision and order of the court.