Leitch v. Himo

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Eerier, J.), dated April 16, 1999, as, upon renewal of the plaintiff’s prior motion for partial summary judgment on the issue of liability, vacated a prior order of the same court, dated January 13, 1999, which granted the plaintiff’s motion for partial summary judgment on the issue of liability upon the defendant’s default in responding to the motion, and denied the motion without prejudice to renewal upon completion of discovery. Ordered that the order is affirmed insofar as appealed from, with costs. Upon renewal, the court properly vacated its prior order granting the plaintiff’s motion for partial summary judgment on the issue of liability and denied that motion. Based on the evidence submitted in support of the defendant’s motion for renewal, there is a triable issue of fact as to whether the defendant was faced with an emergency situation before the subject automobile collision (see, Barath v Marron, 255 AD2d 280; Varsi v Stoll, 161 AD2d 590). Santucci, J. P., Joy, Thompson and Goldstein, JJ., concur.