NORIEGA v. Raphael Gonzalez, et al., Defendants. (2005)

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered on or about June 14, 2004, which denied defendant King's motion for summary judgment, unanimously affirmed, without costs.

King's reliance on the emergency doctrine is improperly raised for the first time on appeal (see Woodson v. Mendon Leasing Corp., 292 A.D.2d 159, 739 N.Y.S.2d 125 [2002] ).   In any event, evidence that King was approximately three car-lengths behind plaintiff's vehicle, which was being driven erratically, when he observed that vehicle's brake lights, and that King may have been exceeding the posted speed limit when he struck plaintiff's vehicle, raise issues of fact precluding summary judgment in his favor (see Herbert v. Morgan Drive-A-Way, 84 N.Y.2d 835, 617 N.Y.S.2d 127, 641 N.E.2d 147 [1994] ).