Opinion
424 Index No. 23637/20 Case No. 2023–00758
06-08-2023
Roberto ROMERO Jr., Plaintiff–Appellant, v. Luis Javier VALDEZ et al., Defendants–Respondents.
Brand Brand Nomberg & Rosenbaum, LLP, New York (Brett J. Nomberg of counsel), for appellant. Carman, Callahan & Ingham, LLP, Farmingdale (Anne P. O'Brien of counsel), for respondents.
Brand Brand Nomberg & Rosenbaum, LLP, New York (Brett J. Nomberg of counsel), for appellant.
Carman, Callahan & Ingham, LLP, Farmingdale (Anne P. O'Brien of counsel), for respondents.
Webber, J.P., Gonza´lez, Rodriguez, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Bianka Perez, J.), entered December 9, 2022, which denied plaintiff's motion for leave to renew his motion for summary judgment on liability and to strike the emergency doctrine affirmative defense, unanimously affirmed, without costs.
Plaintiff failed to offer new facts that would change the prior determination denying plaintiff summary judgment on liability, as the deposition testimony of defendant Luis Javier Valdez was consistent with the affidavit that he submitted in opposition to plaintiff's summary judgment motion ( CPLR 2221[e][2] ). Because issues of fact remain as to whether the accident was the result of Valdez's own negligence or whether he was afforded little time to consider alternative courses of action prior to rear-ending plaintiff's vehicle ( Romero v. Valdez, 198 A.D.3d 496, 497, 156 N.Y.S.3d 19 [1st Dept. 2021], lv dismissed 37 N.Y.3d 1232, 164 N.Y.S.3d 68, 184 N.E.3d 889 [2022] ), dismissal of the emergency doctrine affirmative defense is unwarranted (see Gonzalez v. Marescot, 139 A.D.3d 603, 603–604, 33 N.Y.S.3d 26 [1st Dept. 2016] ; Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991] ).