Opinion
Argued January 14, 2000
February 24, 2000
In an action, inter alia, to recover damages for wrongful death, etc., the defendants appeal from an order of the Supreme Court, Nassau County (McCabe, J.), entered December 7, 1998, which denied their motion for summary judgment dismissing the complaint.
Montfort, Healy, McGuire Salley, Garden City, N.Y. (Edward R. Rimmels and Donald Neuman of counsel), for appellants.
Michael N. David, New York, N.Y., for respondents.
CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Viewing the evidence in the light most favorable to the plaintiffs (see, Leonard v. Kinney Sys., 199 A.D.2d 470 ; Lipsius v. White, 91 A.D.2d 271, 276 ), the emergency doctrine does not entitle the defendants to summary judgment as a matter of law. The record presents issues of fact concerning the participation of the defendant Gregory Szumowski in the creation of the emergency (see,Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327 ), and whether the conduct of that defendant, considered in light of the emergency, was reasonable (see, Ferrer v. Harris, 55 N.Y.2d 285, 293 ).