PEMBERTON v. LIBERTY ASHES INC (2026)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered August 11, 2025, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Supreme Court properly concluded that defendants established their prima facie entitlement to summary judgment by submitting video footage from the truck's dashboard camera which showed that the truck, being driven by defendant Jamel D. White, had the green light and thus, the right of way before the accident, and that plaintiff ran a red light when he rode into the intersection at the time of the accident in violation of Vehicle and Traffic Law §§ 1111(d)(3), 1143 (see Zapata v. Edwards, 248 AD3d 608, 609 [1st Dept 2026];  Min Zhong v. Matranga, 208 AD3d 439, 442 [1st Dept 2022], affd 39 NY3d 1053 [2023];  Felix v. Polakoff, 178 AD3d 561, 563 [1st Dept 2019] ).  The video, along with deposition testimony, also established that plaintiff was riding his bicycle against the one-way traffic on East 39th Street, in violation of Vehicle and Traffic Law § 1127, when he collided with the truck, which was traveling north on Tunnel Exit Street.

In opposition, plaintiff failed to raise an issue of fact.  Plaintiff provided an expert report by a retired police officer, Joseph Pollini, who opined that White was smoking what appeared to be a marijuana blunt at the time of the incident.  This opinion is speculative, conclusory, and unsupported by the record (see Cabrera v. Golden, 231 AD3d 149, 156 [1st Dept 2024];  Aponte v. Uber Tech., Inc., 230 AD3d 1053, 1053–1054 [1st Dept 2024];  Hidalgo v. Vasquez, 187 AD3d 683, 684[1st Dept 2020] ).  There is no forensic evidence, or witness testimony, to ascertain whether the object White was smoking contained marijuana or how much marijuana it contained.  Indeed, at his deposition White denied having smoked marijuana.  He testified that he was a regular cigarette smoker and that the item he was smoking was a cigarette.  Additionally, the police accident report does not refer to marijuana whatsoever.

Finally, Dr. Pugh's opinion that White was speeding while smoking marijuana was speculative and contradicted by defendants' admissible GPS evidence, which showed that the truck's speed registered between three and nine miles per hour right before the accident, well below the posted speed limit of 25 miles per hour or even 12 miles per hour, which Dr. Pugh opined was an appropriate speed due to the rainy conditions.  Dr. Pugh's opinion further fails to set forth the methodology used to calculate the speed of the truck.  Instead, the expert merely states in a conclusory manner, “[d]etailed analysis of the video footage showed the dump truck proceeding at approximately 31 mph at impact” without setting forth the methodology used or whether that methodology is generally accepted in the field.  The supplemental report suffers from the same infirmities.  Therefore, the expert's opinion is insufficient (De La Rosa v. Nelson Ave. Holdings, 199 AD3d 513, 514 [1st Dept 2021] ).