This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
An expert’s opinion can raise a question of fact only if it rests on evidence in the record and explains how the expert reached it. Here, the First Department affirmed the dismissal of a bicyclist’s case against a truck driver and others, because the truck’s dashcam video showed that the truck had the green light and the cyclist rode through a red light, the video and testimony showed he was riding against one-way traffic, and his experts’ opinions that the driver was smoking marijuana and speeding were speculative.
The case
- Court
- Appellate Division, First Department
- Decided
- October 27, 2026
- Case
- Pemberton v Liberty Ashes Inc.
- Citation
- 2026 NY Slip Op 06255
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff, riding a bicycle on East 39th Street, collided with a truck traveling north on Tunnel Exit Street. He sued Liberty Ashes Inc. and others, including the truck’s driver. The defendants moved for summary judgment, relying on video from the truck’s dashboard camera and deposition testimony. The Supreme Court, Bronx County, granted the motion and dismissed the complaint, and the plaintiff appealed.
The holding
The First Department unanimously affirmed. The dashcam video showed that the truck had the green light and the right of way, and that the plaintiff ran a red light, in violation of Vehicle and Traffic Law §§ 1111(d)(3) and 1143; the video and testimony also showed that he was riding against one-way traffic, in violation of § 1127 (2026 NY Slip Op 06255, *1). In opposition, a retired police officer opined that the driver was smoking what appeared to be a marijuana blunt. “This opinion is speculative, conclusory, and unsupported by the record” (id.): there was no forensic evidence or witness testimony showing whether what the driver was smoking contained marijuana, he testified that it was a cigarette, and the police accident report did not mention marijuana. A second expert’s opinion that the driver was speeding “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” (id. at *2), and it did not set out the methodology used to calculate the truck’s speed. “Therefore, the expert’s opinion is insufficient” (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Cabrera v Golden (231 AD3d 149) and De La Rosa v Nelson Ave. Holdings (199 AD3d 513).
What it means
- Video and vehicle data can decide a case before trial, on either side.
- An expert who says a driver was using marijuana needs something in the record to support it, such as forensic evidence or a witness.
- An expert who calculates speed from video must explain the method used and whether it is generally accepted in the field. A bare number is not enough, especially when GPS data shows otherwise.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
Two of today’s entries turn on video of the accident itself. In Brown, a video helped the woman who fell; here, the dashcam video and GPS data decided the case against him. Courts look at what the evidence shows, and an expert cannot fill a gap with a guess. As dashcams, phone video, building cameras, and vehicle data become more common, more cases will turn on objective records rather than on competing memories, and more may be resolved before they reach a jury, because the key facts are no longer in dispute. There is some irony in our first lesson below: we advise getting the other vehicle’s video promptly, and here that kind of video ended the cyclist’s case. It is still the right advice. We believe two lessons follow. 1. If you are hurt in a crash, ask your lawyer to send a preservation letter for the other vehicle’s dashcam video and GPS data promptly, and tell your lawyer everything that happened, including anything you may have done wrong; it is better to know at the start what the video will show (see our entry on Fernandez v Port Authority). 2. For lawyers, before relying on an expert’s opinion about drug use or speed, make sure it rests on record evidence and sets out a method the court can test. An opinion is only as strong as what it stands on.
Topics
Court: First Department. Year: 2026. Statutes: Vehicle and Traffic Law §§ 1111(d)(3), 1127, 1143. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 27, 2026. Posted October 28, 2026.
Questions about your own accident?
Call us for a free consultation. Calls answered live 24 hours a day, 7 days a week.