Albino v. Bender

Albino v Bender 2024 NY Slip Op 33671(U) October 4, 2024 Supreme Court, Kings County Docket Number: Index No. 523205/2022 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication. .. ---------------------"""""!I--.------:---~_=J,.::;<:~-.,;::::::"'----------- FILED: KINGS COUNTY CLERK 10/08/2024 04:49 PM INDEX NO. 523205/2022 - NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/08/2024 Y !

At IAS Part At an lAS Part 83 of of the the Suprem Supremee Court Court of of the State State of New York of New York held held in and and for the County County of Kings at 360 Adams of Kings Adams Street, Street, BrooklY.n, New Brookly.n, New York, York, on on the th ~ e ~ day ~tyla42024. of Oefyla.ct.2024. of PRESEN PRESENT: T: HON.

HON. INGRID INGRID JOSEPHJOSEPH, , J.S.C. J.S.C. SUPRE SUPREME ME COURT COURT OF THE THE STATE STATE OF NEW YORK NEW YORK COUNT COUNTYY OF KINGS KINGS ---------- ---------- ---------- ---------- ------ -----------------------X ----------------------------------------------------------------------J( Index No: 523205/ Index 523205/2022 2022 ARIAD ARIADNA NA ALBIN ALBINO, O, Motion Seq.

Motion Seq. 5-6 Plaintiff Plaintiff(( s) -against -against-- ELATERINI BENDER, ELATERINI BENDER, JOHN JOHN DOE, DOE, and FICTITIOUS FICTITIOUS ORDER ORDER CORPO RATIONS 1-10, CORPORATIONS Defenda Defendant( nt(s) ---------- ------------------------------------------------------------X ----------------------------------------------------------------------J( The following e-filed papers read herein: NYSCEF Nos.: Notice of Motion/ Motion/Affidavits Affidavits Annexed Exhibits AnnexedlReply Annexed/Reply .......... . 52-62; 52-62; 86-87 86-87 Affirmati on in Oppositio Affirmation n/Affidavits Annexed/Exhibits Opposition/Affidavits Annexed/Exhibits Annexed ........... .. 72-77 72-77 Notice of Motion/A Motion/Affidavits ffidavits Annexed Annexed/Reply .......... .

Exhibits AnnexedlReply 63-70; 63-70; 88 Affirmati on in Affirmation in Oppositio n/Affidavits Annexed/ Opposition/Affidavits Annexed/Exhibits Exhibits Annexed ........... .. 78-84 78-84 In this action, In this action, Ariadna Ariadna Albino Albino ("Plainti ff') moves ("Plaintiff') moves (Motion (Motion Seq 5) for summary summary judgment judgmen t pursuant pursuant to CPLR to CPLR 3212 3212 on the issue on the issue of liability against of liability Elaterini Bender against Elaterini Bender ("Defend ("Defendant") ant") and to strike Defendant's to strike Defendant's affirmati ve defense affirmative defense ofof compara tive negligence. comparative negligence. Defendant Defendant has opposed the has opposed the motion motion onon the ground that the ground that Plaintiff has not establish ed her burden for summary Plaintiff has not established her burden judgmen t and that summary judgment triable issues issues of of fact fact are that triable are present present warranting aa trial. warranting trial. Additionally, Additionally, Plaintiff moves (Motion Plaintiff moves (Motion Seq. 6) to quash quash Defendant's Defenda nt's judicial subpoena judicial subpoena duces tecum staying duces tecum the depositio staying the depositionn of the non-party of the non-party Witness Witness Ahmed Hussein ("Hussei Ahmed Hussein ("Hussein") n") pursuant to CPLR pursuant to CPLR 2303, 2303, 2304, 2304, and and 3106 3106 and and for for a protective protective order pursuant to CPLR order pursuant CPLR 3103(a).

31 03(a). Defendant has opposed Defendant has the opposed the motion. motion.

This This action action arises arises from an alleged alleged motor vehicle collision motor vehicle collision that that occurred occurred on October October 19, 19, 2021, 2021, wherein wherein Plaintiff, Plaintiff, aa pedestrian, pedestrian, alleges that she was struck alleges that struck from behind behind by a 2020 Honda motor 2020 Honda motor vehicle vehicle bearing a New bearing a New Jersey Jersey State license plate State license plate number number L61NCL L61NCL while while crossing crossing the intersect intersection at 90 ion at Street and 90thth Street and 33rd rd Avenue in Brooklyn, Avenue in Brooklyn, New New York.

York. ydyct A venue is a two-way Avenue two-way street street with with lanes lanes of travel going of travel going north north and and south south with with parking parking onon both both sides sides of the street. of the street. There There is no traffic traffic control device at the control device the intersection. intersection.

In support of her motion, Plaintiff In support of her motion, Plaintiff argues argues that Defendant violated that Defendant violated Vehicle Vehicle and and Traffic Traffic Laws Laws ("VTL") 115 l(a), l 146(a), 1 l ("VTL") 1151(a), 1146(a), 1163(a), 63(a), and l 128(a) 1128(a) and was sole proximate was the sole proximate cause cause of of the the accident. accident. Plaintiff Plaintiff submits an affidavit submits an affidavit wherein wherein she states that she states that on the the date date of of the accident, accident, upon upon entering entering the the intersection, she intersection, she stopped stopped and and looked ahead on 3rd looked ahead rd A venue for any Avenue any approaching approaching vehicles vehicles attempting attempting to to tum tum left left from from 33rd rd A venue onto th Avenue onto 90 Street. th Street. Plaintiff Plaintiff states that she also states that also looked looked left left and behind behind her her for any any vehicles vehicles attempting attempting

1 of 6 [* 1] FILED: KINGS COUNTY CLERK 10/08/2024 04:49 PM INDEX NO. 523205/2022 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/08/2024 to make make a right from 3rdrd Avenue tum from right tum onto 90thth Street.

Avenue onto Plaintiff asserts Street. Plaintiff that she observed asserts that vehicles observed no vehicles attempting attempting to make any turns make any and that turns and was safe that it was safe to cross. Plaintiff alleges cross. Plaintiff that she stepped alleges that stepped off the sidewalk off the sidewalk into into the crosswalk and proceeded crosswalk and the street, cross the proceeded to cross that when street, and that was approximately when she was across halfway across approximately halfway the intersection intersection that struck from was struck that she was from behind Defendant's vehicle. behind by Defendant's vehicle. Plaintiff contends that Plaintiff contends was that she was completely the crosswalk completely in the time of the time crosswalk at the ace ident and of the accident states that and states that she only became aware only became of Defendant's aware of Defendant's vehicle approximately one vehicle approximately second or one second before the or less before collision. Plaintiff the collision. Plaintiff asserts that she did not asserts that time to have time not have react react or avoid the collision. avoid the Plaintiff alleges collision. Plaintiff alleges that Defendant's vehicle that Defendant's left hip and her left vehicle hit her and the back of the back her left of her leg causing her to fall to the causing her Plaintiff states ground. Plaintiff the ground. states that the ground, while on the that while Defendant's observed Defendant's ground, she observed vehicle vehicle- black Honda - a black driven by Honda driven woman --finishing by a woman finishing a right-hand from 3rdrd Avenue tum from right-hand tum onto 90thth Street.

Avenue onto Street.

Plaintiff Plaintiff states that after states that the collision, after the the operator collision, the of Defendant's operator of vehicle stopped Defendant's vehicle and had stopped and brief had a brief conversation her before with her conversation with fleeing the before fleeing the scene. Additionally, Plaintiff scene. Additionally, Plaintiff submits affidavit of submits an affidavit non-party of non-party witness Hussein and witness Hussein Google Maps and Google photos of Maps photos intersection. of the intersection.

Hussein states affidavit, Hussein In his affidavit, that on the date of states that the accident, of the was walking accident, he was east on 90thth Street walking east Street on the north side of north side of the towards 3rdrd Avenue. road towards the road Hussein asserts Avenue. Hussein asserts that was about that he was feet from 3rdrd Avenue about 15 feet Avenue when when he saw woman enter saw a woman enter the crosswalk at the the crosswalk heading from intersection heading the intersection left to right, from his left the that as the right, and that woman woman was approximately halfway was approximately through the halfway through crosswalk, he saw the crosswalk, black Honda saw a black make a right Honda make tum hand tum right hand rd Avenue onto off 3rd off Avenue onto 90thth Street.

Street. Hussein that he saw states that Hussein states the vehicle saw the vehicle strike pedestrian knocking the pedestrian strike the knocking her to the ground. the ground. Hussein contends thereafter Hussein contends that he called thereafter that and that called 911 and took a photo that he took the vehicle's of the photo of license vehicle's license plate after the operator plate after and was stopped and operator stopped was having conversation with having a conversation the pedestrian. with the Hussein states pedestrian. Hussein that he states that stayed the scene stayed on the until the scene until police arrived the police arrived wherein, gave a statement wherein, he gave statement and photograph to provided his photograph and provided the officer. officer.

In opposition, Defendant argues opposition, Defendant argues that motion for summary Plaintiffs motion that Plaintiffs judgment should summary judgment denied should be denied because because Defendant's liability has Defendant's liability been established not been has not matter of established as a matter Defendant asserts of law. Defendant Plaintiff that Plaintiff asserts that assumes all major assumes facts including relevant facts major relevant that Defendant including that was driving Defendant was driving and/or that someone and/or that driving else was driving someone else the subject vehicle with subject vehicle Defendant's permission with Defendant's that the subject and/or that permission and/or subject vehicle even involved was even vehicle was involved in the accident. Defendant states accident. Defendant that Plaintiff's states that Plaintiffs complaint affidavit does nor affidavit complaint nor not allege does not that Defendant allege that Defendant was driving was driving the vehicle time and the time vehicle at the place of and place the accident. of the accident. Additionally, Defendant states Additionally, Defendant states that Plaintiff failed that Plaintiff failed to establish that establish that Defendant gave permission Defendant gave anyone else permission to anyone else to drive the subject drive the subject vehicle. contends Defendant contends vehicle. Defendant that that Plaintiff Plaintiff alleges that "John alleges that "John Doe" operated a 2020 Doe" operated Honda vehicle 2020 Honda bearing a New vehicle bearing Jersey license New Jersey plate license plate #L61 NCL the time NCL at the of the time of accident with the accident Defendants permission with Defendants permission but establish that but fails to establish vehicle was the vehicle that the actually claims that Defendant claims involved. Defendant actually involved. that the submitted Notice to Admit submitted Notice does not Admit does that Defendant's establish that not establish Defendant's was involved vehicle was vehicle because Defendant involved because Defendant admitted that she owned not that admitted not owned the alleged vehicle involved, alleged vehicle involved, but rather that she owns rather that 2020 Honda owns a 2020 Honda with New Jersey with New plate#L61NCL. license plate Jersey license Additionally, Defendant #L61 NCL. Additionally, argues Defendant argues that that Plaintiffs and Google affidavit and Plaintiffs affidavit Google Maps image should Maps image not be considered should not considered because affidavit is Plaintiffs affidavit because Plaintiffs

2 of 6 [* 2] FILED: KINGS COUNTY CLERK 10/08/2024 04:49 PM INDEX NO. 523205/2022 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/08/2024 self-serving self-serving and conclusory conclusory and and because because Plaintiff Plaintiff never never served served a Notice Notice of of Intention Intention to offer offer any any Google Google Maps Maps images images into into evidence evidence as required required by CPLR CPLR 4532-b, 4532-b, thus thus it is inadmissible. inadmissible. Defendant Defendant argues argues that that Plaintiff's Plaintiff's affidavit affidavit is insufficient insufficient because because she states that she did not states that not observe observe any any vehicles vehicles approaching, approaching, heard heard no horn, tires or hom, tires or breaks, breaks, and and only only identifies identifies a black black Honda Honda but but does does not not give give any any other other infomation infomation regarding vehicle or driver. regarding the vehicle driver. Defendant Defendant also also argues argues that that Plaintiff's Plaintiff's affidavit affidavit is contradictory because she contradictory because states she did not states not observe observe any any vehicles vehicles making making a tum tum but but also also that that she saw saw the the vehicle vehicle one one second second or or less before contact. Defendant before the contact. Defendant argues argues that that Plaintiff's Plaintiff's concession concession that that she did did not not see see the the vehicle vehicle raises raises a factual factual question question of of her her reasonable reasonable care care because because she had had a duty duty to see what what there there was was to be seen. seen. With With respect respect to Hussein's Hussein's affidavit, affidavit, Defendant Defendant argues argues that that it should should not not be cons_idered considered because because it was was drafted drafted by Plaintiff Plaintiff or someone someone else else on her her behalf behalf and and that that it misspells misspells the the witness's witness's name. name. Defendant Defendant contends contends that that Hussein's Hussein's photograph should photograph should not not be considered considered because because it is insufficient insufficient since since it does does not not show show the the vehicle vehicle in the intersection intersection and is not not dated. dated.

Furthermore, Furthermore, Defendant Defendant asserts asserts that that Plaintiff Plaintiff moved moved for summary judgment before summary judgment before depositions depositions were were conducted. conducted. Defendant Defendant states states that that she served served a subpoena subpoena on Hussein Hussein for a deposition deposition which which was was scheduled scheduled on or before before October October 16, 2023, 2023, and and that that Plaintiff Plaintiff moved moved to quash quash the the subpoena subpoena the day day before before the scheduled deposition, thus scheduled deposition, thus there there is outstanding outstanding discovery precluding Plaintiff's discovery precluding Plaintiff's entitlement entitlement to summary summary judgment. Additionally, judgment. Additionally, Defendant Defendant contends contends that that her her affidavit affidavit raises raises triable triable issues issues of of fact fact in this this matter. matter. In her her affidavit, affidavit, Defendant Defendant states states that that neither neither she she nor nor her her vehicle vehicle were were involved involved in this this accident accident and and that that upon upon information and information and belief, belief, no on else else drove drove her her vehicle vehicle nor nor did she give give anyone permission to drive anyone permission drive her her vehicle, vehicle, on the the date date of of the the accident. accident.

It is well well established established that that "the proponent of "the proponent of a summary judgment motion summary judgment motion must must make make a prima prima facie facie showing showing of of entitlement entitlement to judgment judgment as a matter matter of of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the absence of absence of any any material material issues issues of fact" (Ayotte of fact" (Ayotte v. v. Gervasio, Gervasio, 81 NY2d [1993], citing NY2d 1062, 1063 [1993], Alvarez v. citing Alvarez v. Prospect Hospital, Prospect Hospital, 68 NY2d NY2d 320,324 [1986]; Zapata 320, 324 [1986]; Zapata v. Buitriago, 107 AD3d v. Buitriago, AD3d 977 [2d Dept Dept 2013]).

2013]). Once Once a prima prima facie facie demonstration demonstration has has been been made, made, the burden burden shifts shifts to the party opposing the party opposing the the motion motion to produce produce evidentiary evidentiary proof, proof, in admissible admissible form, sufficient to establish form, sufficient establish the existence existence of of material material issues issues of of fact fact which which require require a trial trial of of the action. (Zuckerman the action. (Zuckerman v. v. City City of New York, 49 NY2d o/New NY2d 557 [1980]). [1980]).

Summary judgment is a drastic Summary judgment drastic remedy remedy which which should should not not be granted granted where where there there is any any doubt doubt as to the existence existence of of a triable triable issue issue or where where the issue issue is even arguable (Elzer even arguable (Elzer v. Nassau County, v. Nassau County, 111 A.D.2d A.D.2d 212, 212, [2d Dept. 1985]; Steven Dept. 1985]; Steven v. Parker, 99 AD2d v. Parker, AD2d 649, 649, [2d Dept. 1984]; Galetav.

Dept. 1984]; New York Galeta v. New News, Inc., 95 York News, AD2d AD2d 325, 325, [1st [1st Dept.

Dept. 1983]).

1983]). When When deciding deciding a summary judgment motion, summary judgment motion, the the Court Court must must construe construe facts facts in the the light light most most favorable favorable to the the non-moving party (Marine non-moving party Midland Bank (Marine Midland Bank NA.

N.A. v. Dino & Artie's v. Dino Artie's Automatic Automatic Transmission Transmission Co., 168 AD2d AD2d 610 [2d Dept. Rebecchi v. Dept. 1990]; Rebecchi v. Whitemore, Whitemore, 172 AD2d AD2d 600 [2d Dept.

Dept. 1991 ]).

1991]).

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While While a Plaintiff Plaintiff does does not not bear bear the the burden burden to establish establish the the absence absence of of his his own own comparative comparative fault, Plaintiff Plaintiff still has has the burden of the burden of establishing establishing Defendant's Defendant's liability liability as a matter matter of law (Seizeme of law (Seizeme v Levy, Levy, 208AD3d 208AD3d 809 [2d Dept.

Dept. 2022]; Rodriguez v Ciry 2022]; Rodriguez Ciry of New York, 31 NY3d of New NY3d 312 323-324 323-324 [2018]; Poon v [2018]; Poon Nisanov, 162 AD3d Nisanov, AD3d 804 [2d Dept.

Dept. 2018]; also Sapienza 2018]; see also Sapienza v Harrison, Harrison, 191 AD3d AD3d 1028 [2d Dept.

Dept. 2021]).

2021]).

If If the plaintiff fails the plaintiff fails to demonstrate, prima facie, demonstrate, prima facie, that that the operator operator of of the allegedly allegedly offending offending vehicle vehicle was was at fault, fault, or if if triable triable issues issues of of fact fact are raised raised by the the defendants defendants in opposition, opposition, summary judgment on the summary judgment the issue issue of of liability liability must must be denied denied (see Dooley at 164; Quintero (see Dooley Quintero v Boyle, Boyle, 221 AD3d AD3d 925 [2d Dept. 2023]; Guido Dept. 2023]; Guido v Gadnese, Gadnese, 214 AD3d AD3d 715 [2d Dept. 2023]; Wise v Boyd Dept. 2023]; Boyd Bros. Bros. Transportation, Inc., 194 AD3d Transportation, Inc., AD3d 1096 [2d Dept. 2021]; Criollo Dept. 2021]; Criollo v Maggies Maggies Paratransit Paratransit Corp., Corp., 155 AD3d AD3d 683 [2d Dept.

Dept. 2017]; Phillip v D & D Carting 2017]; Phillip Carting Co., Inc., Inc., 136 AD3d AD3d 18 [2d Dept.

Dept. 2015]; Heath v Liberato, 2015]; Heath Liberato, 82 AD3d AD3d 841 [2d Dept.

Dept. 2011]).

2011]).

Vehicle Traffic Law Vehicle and Traffic Law 3 88( I) provides 388(1) provides that, that, with with the the exception exception of of bona bona fide fide commercial commercial lessors, lessors, which which are exempt exempt from from vicarious vicarious liability liability under under federal federal law, the the owner owner of of a vehicle vehicle shall shall be liable liable for the negligence negligence of of any person person using using or or operating operating the the vehicle vehicle with with the permission, express the permission, express or implied, implied, of of the owner owner (see also Shepard (see also Shepard v Power.

Power. 190 AD3d AD3d 63 [2d Dept.

Dept. 2020]).

2020]). Proof Proof of of ownership ownership of of a motor motor vehicle vehicle creates creates the presumption that the presumption that any driver of any driver of a vehicle vehicle is using using the vehicle vehicle with with the the owner's consent (Murdza owner's consent (Murdza v Zimmerman, Zimmerman, 99 NY2d NY2d 375 [2003]; Leotta v Plessinger, [2003]; Leotta Plessinger, 8 NY2d NY2d 449 [1960]). [1960]). However, However, this this presumption presumption may may be rebutted rebutted by substantial substantial evidence evidence sufficient sufficient to show show that that a vehicle vehicle was was operated operated without without the owner's owner's consent (Murdza consent (Murdza at 380; Minuk Han 380; Minuk Han v BJ BJ Laura Laura & Son, Inc., 122 AD3d Son, Inc., AD3d 591 [2d Dept.

Dept. 2014]; Flores v 2014]; Flores Newman, 28 Misc.3dl216(a) Newman, Misc.3dI216(a) [Sup. [Sup. Court Court Kings Kings County County 2010]).

2010]). Substantial Substantial evidence evidence of of non-permissive non-permissive use may may include: include: an affidavit affidavit to the the owner's owner's insurance insurance company, company, a report report of of theft theft to the the police, police, an accident accident report, report, and proof proof that that the the driver driver fled fled the the scene scene as well well as an affidavit affidavit of of the driver (Flores the driver (Flores at I; McDonald 1; see McDonald v. Rose, Rose, 37 AD3d AD3d 781 [2nd Dept.2007]; Country [2nd Dept.2007]; National RR Country Wide Ins. Co. v. National Passenger Corp., R.R. Passenger Corp., 6 NY3d NY3d [2006], Murphy v. Carnisi, [2006], Murphy Carnisi, 30 AD3d AD3d 570 [2nd Dept.

Dept. 2006]).

2006]).

YTL VTL 1151 (a) states: 1151(a) states: (a) When When traffic-control traffic-control signals signals are not not in place place or or not not in operation operation the the driver driver of of a vehicle vehicle shall shall yield yield the right of the right of way, way, slowing slowing down down or stopping stopping ifif need need be to so yield, yield, to a pedestrian crossing pedestrian crossing the roadway roadway within within a crosswalk crosswalk on the the roadway roadway upon upon which which the the vehicle vehicle is traveling, traveling, except except that that any pedestrian crossing any pedestrian crossing a roadway roadway at a point point where where a pedestrian tunnel or pedestrian tunnel or overpass overpass has been been provided provided shall shall yield yield the right right of of way way to all vehicles. vehicles.

YTL VTL l1163(a) l 63(a) states: states: No person (a) No person shall shall tum tum a vehicle vehicle at an intersection intersection unless unless the vehicle vehicle is in proper proper position position upon upon the the roadway roadway as required required in section section eleven eleven hundred sixty, or hundred sixty, or tum tum a vehicle vehicle to enter enter a private road or driveway, private road driveway, or otherwise otherwise tumtum a vehicle vehicle from a direct direct course course or or move move right or left upon right upon a roadway roadway unless unless and and until until such such movement movement can can be made made with with reasonable reasonable safety. No person safety. No person shall shall so tum tum any any vehicle vehicle without without giving giving an appropriate appropriate signal signal in the the manner manner hereinafter hereinafter provided. provided.

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VTL VTL 1146(a) 1146(a) states: states: (a) Notwithstanding Notwithstanding the provisions of the provisions of any other other law to the contrary, contrary, every every driver driver of of a vehicle vehicle shall shall exercise exercise due care care to avoid avoid colliding colliding with with any any ... pedestrian ... ... pedestrian ...

VTL VTL 1128(a) 1128(a) states: states: Whenever Whenever anyany roadway roadway has bee.n divided has been divided into two two or more more clearly clearly marked marked lanes lanes for traffic traffic the following following rules rules in addition addition to all others others consistent consistent herewith herewith shall shall apply: apply: (a) A vehicle vehicle shall shall be driven driven as nearly nearly as practicable practicable entirely entirely within within a single single lane and shall not be moved not moved from from such such lane until until the driver driver has first first ascertained ascertained that that such such movement movement can be made can be made with with safety. safety.

Photographs Photographs submitted submitted in support support or in opposition opposition to a motion motion for summary judgment must summary judgment must be authenticated authenticated and be accompanied accompanied by the requisite requisite foundation foundation (Read (Read v Ellenville Ellenville Nat. Bank, Bank, 20 AD3d AD3d 408 [2d Dept.

Dept. 2005]; 2005]; Wesserman Wesserman v Genovese Drug Store, Inc., Genovese Drug Inc., 282 AD2d AD2d 447 [2d Dept.

Dept. 2001]; 2001]; Saks Saks v Yeshiva Yeshiva of of Spring Spring Valley, Inc., Inc., 257 AD2d AD2d 615 [2d Dept.

Dept. 1999]).

1999]). Authentication, Authentication, with with regard regard to photographs, photographs, generally generally requires requires evidence evidence that that the photographs being the photographs proffered fairly being proffered fairly and accurately accurately represent represent the condition condition depicted depicted by said photographs (Read said photographs (Read at 409; Charlip Charlip v City City ofNew of New York, 249 AD AD 432 [2d Dept.

Dept.

1998]; see also Keene v Rosas, also Keene Rosas, 215 AD AD 3d 938 [2d Dept.

Dept. 2023]).

2023]). Similarly, Similarly, CPLR CPLR 4532-b, 4532-b, authorizes authorizes a trial court court to take take ''judicial ''judicial notice" notice" of of an "image, "image, map, map, location, location, distance, distance, calculation, calculation, or other other information information taken taken from a web web mapping mapping service, service, a global global satellite satellite imaging imaging site, or an internet internet mapping mapping tool tool "that bears the date "that bears it was created, unless it "does created, unless "does not not fairly fairly and accurately portray that accurately portray which it is being that which being offered offered to prove." prove." Here, Here, the Court Court finds finds that that Plaintiff Plaintiff has not not satisfied satisfied her prima facie her prima burden for entitlement facie burden entitlement to summary judgment. The summary judgment. party affidavits The party affidavits submitted submitted herein herein put put at issue issue whether whether the subject subject vehicle vehicle and/or and/or Defendant Defendant were involved in an accident were involved accident at the the subject subject intersection intersection on October October 19, 2021.

2021.1 1 With With respect respect to the submitted submitted affidavit affidavit and photograph of and photograph of non-party non-party witness witness Hussein, Hussein, the credibility credibility of of a witness witness is to be determined determined by the trier trier of of fact. While While the location location of of the intersection intersection itself itself is not not disputed, disputed, the submitted submitted photograph, whether photograph, whether admissible admissible or not, does does not definitely definitely depict depict the background background location location of of tht, tht< subject subject vehicle vehicle nor does it depict nor does depict the subject subject vehicle vehicle in the the intersection intersection in question. question. Additionally, Additionally, with with respect respect to the submitted submitted Google Google Maps Maps image, image, Plaintiff Plaintiff has failed failed to provide provide sufficient notice of sufficient notice of her her intention intention to offer offer the image image as evidence evidence as required pursuant to CPLR required pursuant CPLR 4532-b.

4532-b. Assuming Assuming arguendo arguendo that that Plaintiff Plaintiff had given given the proper proper notice, notice, while while the the Google Google Maps Maps image image may fairly fairly and accurately accurately depict depict the intersection intersection at question, question, it does does not not establish establish that that Defendant Defendant and/or and/or the subject subject vehicle vehicle were present and involved were present involved in an accident accident on October October 19, 2021.

2021.

The court 1I The court notes notes that that while while Defendant's Defendant's affidavit affidavit improperly improperly states states that that her statements are her statements are "upon "upon information information and belief," the affidavit belief," affidavit is duly duly sworn sworn to and notarized. and notarized.

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Furt~ermore.

Furt~ermore, Plaintiff's Plaintiff's motion motion to quash quash the the non-party non-party witness witness subpoena. subpoena, which which .is is now now expired, expired, and for a protective protective <:>ider order staying staying the the deposition deposition of of Husein Husein until until Plaintiff's Plaintiff's summary judgment motion summary judgment motion is decided decided are denied denied as moot. moot.

Accordingly, Accordingly, it is hereby, hereby, ORDERED, ORDERED, that that Pla~ntiffs Pla~ntiffs motion motion (Motion (Motion Seq. 5) for summary judgment is denied, summary judgment denied, and and it is further. further, ORDERED, ORDERED, that that Plaintiff's Plaintiff's motion motion (Motion (Motion Seq. 6) to quash quash the the non-party non-party witness witness subpoena subpoena and for a protective protective order order staying staying the the deposition deposition of of Husein Husein is denied denied as moot. moot. Defendant Defendant is granted granted opportunity opportunity to serve serve a n·ew new subpoena subpoena on Hussein, Hussein, and and parties parties shall shall schedule schedule the the necessary necessary depositions. depositions.

This This constitutes constitutes the.decision thedecision and and order order of of the the court. court.

seph seph J.S.C. J.S.C. · Hon.

Hon. lngnd Ingnd Joseph Joseph Supreme Court Supreme Court Justice Justice

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