GONZALEZ v. CRUZ (2024)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered July 20, 2023, which denied plaintiff's motion for partial summary judgment on the issue of liability and to dismiss defendants’ affirmative defense of comparative negligence, unanimously affirmed, without costs.

Plaintiff testified that while turning right in his vehicle from a designated right-turn lane, he was hit on the rear left side by defendant driver, who was making an illegal right turn from the center lane of traffic.  In contrast, defendant testified that plaintiff was making an illegal right turn from a parking lane when their vehicles collided.  This conflicting testimony created material issues of fact as to the cause of the accident (see Hernandez v. Bestway Beer & Soda Distrib., 301 A.D.2d 381, 381, 753 N.Y.S.2d 467 [1st Dept. 2003]).  The Google images of the accident location, captured roughly four months before the accident, were admissible, however the photos were not relevant as plaintiff submitted no evidence that they accurately depicted the location on the date of the accident (see Mercedes v. 680 SN LLC, 210 A.D.3d 477, 478, 178 N.Y.S.3d 492 [1st Dept. 2022];  Williams v. Laura Livery Corp., 173 A.D.3d 497, 498, 103 N.Y.S.3d 60 [1st Dept. 2019]).

We have considered plaintiff's remaining contentions and find them unavailing.