The issue to be decided in the CL action is whether the NYCHA defendants caused CL’s injuries by breaching a duty of care owed to him. By contrast, the issue decided in the JV action was whether the NYCHA defendants would be partly liable for contribution if CL were found liable for JV’s injuries. Although some of the same facts underlie both questions, the two cases involve different elements of proof and different evidence, such that there is no identity of issues. An award of damages to CL for his own injury would not be inconsistent with the decision in the JV action that NYCHA is not liable to him for his responsibility, if any, for JV’s injuries. Having successfully compelled CL to litigate the facts of the accident in two different venues, the NYCHA defendants cannot successfully argue that CL had a fair opportunity, or indeed any opportunity, to address the issue of NYCHA’s liability for his own injuries in Bronx Supreme Court. No dog bite was involved.
Defendants attempt to confuse the issue by claiming that F&F had no standing to bring the motion for renewal/ reargument. The NYCHA defendants invoke the principle that a party may have only one counsel of record in a given action, but they ignore the fact that CL not by choice was a party to two separate actions and therefore had two sets of attorneys to represent his diverse interests (compare, Kallivokas v Athanasatos, 151 AD2d 396). NYCHA can hardly fault F&F for attempting to intervene in the JV action, when it was NYCHA who first tried to use the JV order to preclude F&F’s claims in the CL action.
Bronx Supreme Court did not improperly exercise its discretion in granting F&F’s motion, which could be considered a motion for renewal based on the new fact that NYCHA was urging an allegedly overbroad reading of the JV court’s order so as to preclude the CL action (see, Horizons Hotels Corp. v New York Patroons, 193 AD2d 911, 913-914 [renewal based on new facts that came to light in subsequent litigation]). Ideally, it might have been better to denominate it a motion to resettle the order, which is the appropriate vehicle to clarify a prior decision (Foley v Roche, 68 AD2d 558, 566). Nonetheless, pursuant to CPLR 2001, the exact label for this motion is less important than the fact that it was necessary to correct a procedural irregularity in a just fashion (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143). In light of the absence of argument concerning NYCHA’s unopposed motion in the JV action, renewal/reargument was an appropriate way to dispel any confusion as to which issues had implicitly been resolved by dismissal of the fourth-party complaint, and which issues had been left for trial in New York County. In any event, even if Bronx Supreme Court’s grant of renewal were improper, the original order dismissing CL’s fourth-party complaint still would not have precluded his negligence claims on his own behalf, for the reasons previously stated.
Summary judgment on the merits was properly denied in the CL action, as numerous issues of fact exist. For example, the parties dispute whether the emergency lights of Maher’s car were turned on; how much time elapsed between the first and second accidents; whether CL, JV and his brother crossed the center lane on their own initiative or at the officer’s direction; and whether it was possible for Maher to park the police car in a different location. JV, for instance, testified that although the police car was stopped for several minutes before the collision with SSM’s vehicle, Maher neither turned on the emergency lights nor left the police car to assist CL and JV. In general, questions of negligence regarding a road accident are best resolved at a jury trial, rather than on a motion for summary judgment.
We decline to consider defendants’ argument that under Vehicle and Traffic Law § 1104 (emergency vehicles), CL must show not merely ordinary negligence by Maher, but reckless disregard for the safety of others. Defendants concede that they never raised this defense on the action, instead seeking summary judgment based on an absence of ordinary negligence. The issue is therefore not preserved as a basis for this Court to grant summary judgment. This is not a case where the facts are undisputed and only a purely legal point is being raised for the first time on appeal (compare, Chateau D’If Corp. v City of New York, 219 AD2d 205, 209, lv denied 88 NY2d 811). Here, by contrast, application of Vehicle and Traffic Law § 1104 to grant defendants’ summary judgment motion would require this Court to decide disputed factual issues concerning the circumstances of the accident (Foster v New York City Hous. Auth., 251 AD2d 42, 43).
Even if we chose to apply the reckless disregard injury standard, it is for the trier of fact to decide whether Maher complied with that standard, given that so many key details of the accident are the subject of contradictory allegations (compare, Saarinen v Kerr, 84 NY2d 494 [facts of accident undisputed]). Neither is it clear as a matter of law that Maher’s actions amounted to no more than a momentary judgment lapse for which no liability attaches in an emergency situation (Szczerbiak v Pilat, 90 NY2d 553, 556). Under the time frame described by JV, Maher could have had enough time to consider and carry out the safer course of action suggested by plaintiff’s expert. The dissent seemingly discounts this evidence in the record by stating that the only credible evidence shows that CL and JV were hit within seconds after Maher pulled over. On a motion for summary judgment, this Court’s role is limited to finding triable issues, not deciding factual questions that depend on the memory and credibility of witnesses (Rose v Da Ecib USA, 259 AD2d 258, 259).