Curley v. Szumowski

—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. 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 AD2d 470; Lipsius v White, 91 AD2d 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 NY2d 322, 327), and whether the conduct of that defendant, considered in light of the emergency, was reasonable (see, Ferrer v Harris, 55 NY2d 285, 293). O’Brien, J. P., Friedmann, Florio and Schmidt, JJ., concur.