SANIH v. BEN NINO AUTO REPAIR INC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Gina Abadi, J.), dated December 26, 2024.  The judgment, upon a jury verdict in favor of the defendants on the issue of liability, and upon the denial of the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, is in favor of the defendants and against the plaintiff dismissing the amended complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained when he fell after he lost his balance on a step while exiting the passenger side of a tow truck owned by the defendants.  The plaintiff alleged, inter alia, that the accident was caused by the defendants' failure to repair and maintain the steps on the passenger side of the tow truck.

The action proceeded to trial on the issue of liability.  At the close of trial, the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and the Supreme Court reserved decision on the motion.  The jury thereafter returned a verdict finding that the defendants were not negligent.  Subsequently, the court denied the plaintiff's motion and entered a judgment in favor of the defendants and against the plaintiff dismissing the amended complaint.  The plaintiff appeals.

To be entitled to judgment as a matter of law pursuant to CPLR 4401, a plaintiff has the burden of showing that there is no rational process by which the jury could find in favor of the defendant and against the moving plaintiff (see Hudler v. Reddy, 226 AD3d 654, 655).  In considering such a motion, the evidence must be construed in the light most favorable to the nonmoving party, and the motion should not be granted where the facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question (see TJG Realty of Rockland, LLC v Con Serv Constr., Inc., 218 AD3d 713, 716;  Galarza v. City of New York, 123 AD3d 660, 660–661).

Here, the parties presented conflicting testimony about the happening of the accident, which raised a credibility issue for determination by the jury (see Galarza v. City of New York, 123 AD3d at 661).  Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability.

Further, the evidentiary rulings of the Supreme Court that are challenged by the plaintiff do not warrant a new trial.  Trial courts are accorded wide discretion in making evidentiary rulings, and those rulings should not be disturbed on appeal absent an improvident exercise of discretion (see Chiloyan v. Chiloyan, 246 AD3d 864, 867).  In order to lay a proper foundation to admit photographs into evidence at trial, a party generally must authenticate them by providing proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident (see Powell v. Burg, 239 AD3d 679, 680;  Traca v Catapano Engg. & Architecture, P.C., 237 AD3d 1134, 1135).

Here, the defendants failed to lay a proper foundation for admission of photographs of the steps at issue taken several months after the accident, and the Supreme Court should not have admitted them into evidence (see Fraser v. 147 Rockaway Pkw, LLC, 203 AD3d 894, 895).  However, this error was harmless, as there is no indication that the admission of the photographs prejudiced a substantial right of a party (see CPLR 2002;  Rosenberg v. Jing Jiang, 153 AD3d 744, 745).

The plaintiff's contentions regarding certain remarks and comments by the defendants' counsel are largely unpreserved for appellate review (see Quentin v. Knox, 246 AD3d 956, 958).  To the extent that the contentions are preserved, “litigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” (Fortune v. New York City Hous. Auth., 201 AD3d 705, 708 [internal quotation marks omitted] ).  The interest of justice thus requires a court to order a new trial where comments by an attorney for a party's adversary deprived that party of a fair trial or unduly influenced a jury (see id.).  Here, while some of the challenged conduct by the defendants' counsel was improper, the conduct was not so pervasive or prejudicial as to have deprived the plaintiff of a fair trial (see Quentin v. Knox, 246 AD3d at 958;  Fortune v. New York City Hous. Auth., 201 AD3d at 708).

The plaintiff's remaining contention is without merit.

DILLON, J.P., DUFFY, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.