White v. Consolidated Edison

33 A.D.3d 514, 822 N.Y.S.2d 533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2006
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Barry Salman, J., and a jury), entered March 24, 2005, in favor of defendant and against plaintiff dismissing the complaint, unanimously affirmed, without costs.

The challenged videotape depicts plaintiff on the day of the accident slowly riding a motorcycle at an event for motorcycle enthusiasts at which some of the participants were performing dangerous stunts. While the tape does not contradict plaintiff s testimony that his motorcycle lost traction because of pebbles or gravel in the street near defendant utility’s excavation, nevertheless, given the eyewitness testimony that plaintiff himself performed stunts—indeed, one eyewitness testified that the accident occurred as plaintiff was performing a stunt—the tape was properly admitted as relevant to plaintiffs credibility (see generally Boyarsky v Zimmerman Corp., 240 App Div 361, 366 [1934]; cf. Zegarelli v Hughes, 3 NY3d 64, 69 [2004]). We have considered plaintiffs other arguments and find them unavailing. Concur—Mazzarelli, J.E, Friedman, Nardelli, Williams and Malone, JJ.