It's certainly not every day that you see a decision like this, and definitely not in the car accident context.

But when I read the Appellate Division, First Department's February 7, 2019 ruling in Carthen v. Sherman, I couldn't help but think about the scene above from the classic movie The Princess Bride, where Carol Kane's character calls out Billy Crystal for denying true love, screaming "Liar!!!!"

What Happened in Carthen

In Carthen, the defendant Sherman sought an order granting him summary judgment, dismissing the complaint against him on the grounds that he was not liable for the accident (and therefore, the plaintiff's personal injuries). In support of his motion, Sherman submitted both defendants' sworn deposition testimony, which was supported by the police accident report and photographic evidence depicting the areas of impact between the two cars, to the effect that defendant Jackson had improperly merged into defendant Sherman's lane from the right, in violation of Vehicle & Traffic Law §1128(a). 

In opposition to the motion, the plaintiff submitted her own deposition testimony that diverged, in material respects, from what defendant Sherman had submitted. Normally, that alone would create a "material issue of fact that would require determination by a jury," but in this (rare) case, the appellate court was so unimpressed by plaintiff's testimony, that they opted to disregard it in its entirety, stating, in pertinent part, as follows:

"Plaintiff Trena Carthen's internally contradictory deposition testimony, in which, after initially stating that she never saw the impact, she repeatedly claimed that Jackson was driving in the middle lane, and Sherman swerved into them from the right, is demonstrably false and incredible as a matter of law (see Finley v Erie & Niagara Ins. Assn., 162 AD3d 1644, 1645-1646 [4th Dept 2018]; see also MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997], affd 92 NY2d 421 [1998]), as it contradicts every other piece of evidence in the record indicating that Jackson moved into Sherman from the right, including photographs showing that Sherman's front right fender was damaged, which could not have occurred if, as plaintiff claimed, he had struck Jackson from the right. Those photographs are in turn corroborated by the police report, which shows damage only to Sherman's front right fender and Jackson's rear left side...

And now, for the money quote:

"This Court is not "required to shut its eyes to the patent falsity of a [claim]" (MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997], affd 92 NY2d 421 [1998]). Here, for the reasons explained before, we conclude that plaintiff's deposition testimony was demonstrably false and should be rejected as incredible as a matter of law, permitting summary judgment in favor of defendant."

Takeaways - And What May Happen Next

Depending on a number of factors, most importantly, the extent of the plaintiff's injuries, it would hardly be surprising if the plaintiff appeals this order to the Court of Appeals (New York State's highest court), particularly given that one of the judges at the Appellate Division, First Department penned a dissent to this Order. 

That being said, this decision offers a cautionary tale that should be internalized:

Testimony under oath that is clearly and demonstrably undermined by objective photographic evidence may not prove to be worth the paper it's transcribed upon.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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