Romero v Valdez, 2023 NY Slip Op 03081 [217 AD3d 485]

June 8, 2023

Appellate Division, First Department

[*1]

Roberto Romero Jr., Appellant,

v

Luis Javier Valdez et al., 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.

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 AD3d 496 , 497 [1st Dept 2021], lv dismissed 37 NY3d 1232 [2022]), dismissal of the emergency doctrine affirmative defense is unwarranted ( see Gonzalez v Marescot , 139 AD3d 603 , 603-604 [1st Dept 2016]; Rivera v New York City Tr. Auth. , 77 NY2d 322, 327 [1991]). Concur—Webber, J.P., González, Rodriguez, Pitt-Burke, JJ..