Second Department Grants Renewal Based on Change In Testimony Between Witness's Affidavit and His Deposition

In Deleo v. Federal Express Corp., the plaintiffs were the driver and passenger in a vehicle struck in the rear by a Federal Express truck. The driver of the truck submitted an affidavit in opposition to the plaintiff-driver's motion for summary judgment, attesting to the fact that the plaintiff-driver had come to a sudden, unexpected and abrupt stop in front of the affiant's truck. The Supreme Court denied the plaintiff-driver's motion, finding a question of fact to be resolved at trial.

At his deposition, however, the truck driver testified that he saw a vehicle in front of the plaintiff's vehicle also come to an abrupt stop. As such, the plaintiff-driver moved for leave to renew his motion for summary judgment based on the truck driver's change in testimony. The Supreme Court denied the motion.  

On appeal, the Second Department reversed and granted the motion. The Court found that the driver's deposition testimony contained new facts that were not offered on the initial motion for summary judgment. The Court further found that the new facts were sufficient to establish the plaintiff-driver's entitlement to summary judgment as a matter of law on the issue of liability.