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Decided on September 28, 2011
Supreme Court, Queens County

15646/2010
Robert J. McDonald, J.
This is a personal injury action in which plaintiff, KIRAN SHAH, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on February 20, 2010, at approximately 7:42 a.m. on Jericho Turnpike (Rte. 25), near the intersection with Rte. 110 in Suffolk County, New York.
At the time of the accident, plaintiff was operating his vehicle in an eastbound direction on Jericho Turnpike. The vehicle owned by defendant Patricia Mason and operated by [*2]defendant Taisha S.
Mason was proceeding westbound on Jericho Turnpike when it suddenly swerved and crossed over the double lines into the plaintiff's lane of traffic colliding with the plaintiff's vehicle on the plaintiff's side of traffic. As a result of the impact the plaintiff allegedly injured her back.
Plaintiff commenced an action against the defendant by filing a summons and complaint on June 18, 2010. Issue was joined by service of defendants' verified answer dated August 11, 2010.
Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting the matter down for an inquest on damages. In support of the motion, the plaintiff submits an affidavit from counsel, Scott L. Wiss, Esq., a copy of the pleadings, an affidavit of facts from the plaintiff, and a copy of the police accident report (MV-104).
The police report contains the officer's description of the accident based upon his conversations with the drivers. His report states, "Op No.1(plaintiff) states Veh #2 swerved into his lane causing them to collide. Op #2 (defendant) states she is unsure of what happened." The police report also contains a handwritten statement from an independent eyewitness who observed the accident. The eyewitness, William Klipp states as follows:
"I was driving westbound on Rt. 25 in Huntington. I was behind a white Maxima NYEXA6378. I was behind this car for about 1 mile. The car was swerving from right lane to left lane when we passed Rt 110. The car swerved into eastbound lane and was in collision with the vehicle that was traveling eastbound. I called 911 and waited for the police to arrive."
The plaintiff also submits his own affidavit in support of the motion, dated May 8, 2011. Plaintiff states as follows:
"On February 20, 2010 at approximately 7:40 a.m., I was operating my 1995 Mitsubishi eastbound along Jericho Turnpike near its intersection with Route 110 in Huntington, New York. Jericho Turnpike is a two way roadway with two lanes for moving traffic in each direction. The defendant was traveling westbound along Jericho Turnpike and crossed over the double yellow lines into my lane of travel and struck my vehicle on my side of traffic...I saw the defendant as she came into the eastbound lanes and came across the double yellow lines and came onto my side of traffic. I had no time to react as I did not anticipate that she would cross over the double yellow lines into my side of [*3]traffic."
The plaintiff claims that he is entitled to summary judgment based upon the defendant's negligence in swerving her vehicle and crossing the yellow line into the opposite lane of traffic (citing Tsai v Zong-Ling Bon, 79 AD3d 1020 [2d Dept. 2010]). Plaintiff's counsel contends that the actions of Ms. Mason in crossing a double yellow line and driving into oncoming traffic was the sole proximate cause of the accident. Moreover, counsel contends that plaintiff, who was lawfully proceeding in his proper lane of traffic is not required to anticipate that a vehicle proceeding in the opposite direction will cross-over into oncoming traffic (citing Tsai v Zong-Ling Duh, 79 AD3d 1020 [2d Dept. 2010]; Wasson v Szafarski, 6 AD3d 1182 [4th Dept. 2004]).
In opposition to the motion, defendants' counsel, Valerie Katsorhis, Esq., submits her affidavit as well as a copy of the transcript of the deposition testimony of the plaintiff Kiran Shah. Counsel contends that the plaintiff has failed to make a prima facie case and also argues that material issues of fact exist with regard to the occurrence of the accident and who is responsible. Defendant's counsel, who has not provided an affidavit from the defendant driver, states that the defendant did not cross into plaintiff's lane of traffic. Further, counsel claims that the police accident report should not be considered as it constitutes inadmissible hearsay. Further, counsel, although attaching a copy of the plaintiff's deposition, states that the motion is premature as there is substantial discovery outstanding. Defendant's counsel, who has already had an opportunity to depose the plaintiff, states that the motion should be denied as there are essential issues of fact which are within the exclusive knowledge of the plaintiff.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).
Upon review of the plaintiff's motion, the defendant's opposition and the plaintiff's reply thereto this court finds as follows:
It is plaintiff's contention that defendant, Taisha S. Mason, was negligent as a matter of law in crossing over into the plaintiff's lane of traffic and that said negligence was the sole [*4]proximate cause of the accident. This Court agrees.
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his affidavit and the statement of the independent eyewitness both of whom stated that defendant's vehicle suddenly swerved into the opposite lane of traffic on Jericho Turnpike and then colliding with the plaintiff's vehicle which was traveling lawfully in the proper lane of traffic. The statement of the eyewitness annexed to the police report is admissible as a present sense exception to the hearsay rule (see Steinhaus v American Home Prods. Corp., 18 AD3d 312 [1st Dept. 2005]; Irizarry v Motor Vehicle Indemnification Corp., 287 AD2d 716 [2d Dept. 2001]; Taft v New York City Transit Auth., 193 AD2d 503 [1st Dept. 1993]). This evidence established, prima facie, that the defendant was negligent as a matter of law (see Ferebee v Amaya, 83 AD3d 997[2d Dept. 2011][a driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic]; Greenberg v Nolan, 53 AD3d 1065 [4th Dept. 2008]; Lee v Ratz, 19 AD3d 552 [2d Dept. 2005]; Snemyr v. W.A. Morales-Aparicio, 47 AD3d 70 [2d Dept. 2008][the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence showing that defendant violated Vehicle and Traffic Law

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