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Supreme Court, Appellate Division, Second Department, New York.

Thomas MAZZARELLA, et al., Appellants, v. Joseph McVEIGH, Respondent.

Decided: May 21, 2001

DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, LEO F. McGINITY, NANCY E. SMITH and BARRY A. COZIER, JJ. Richard Alan Bernsley, Goshen, N.Y. (Susan R. Nudelman of counsel), for appellants. Charles V. Borsetti, Garden City, N.Y. (Perry T. Criscitelli of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Milano, J.), dated July 11, 2000, which granted the defendant's motion for summary judgment and dismissed the complaint.

ORDERED that the order and judgment is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

 In the early morning hours of November 14, 1998, the defendant was driving on an unpaved, unlit, rural road in Delaware County.   The plaintiffs Thomas Mazzarella and John Petschauer were passengers in the defendant's car at the time.   At some point, the defendant's vehicle left the road and went into a ditch, causing a tire to blow out and the vehicle to flip over.   The plaintiffs thereafter commenced this action, alleging that the injuries sustained by Mazzarella and Petschauer were caused by the defendant's negligence.   At his examination before trial, the defendant testified that the car left the road when he swerved to avoid striking a deer, which was either “approaching from the left or * * * already standing in the middle of the road”.

 The Supreme Court erred in granting the defendant's motion for summary judgment.  “If, under some reasonable view of the evidence, an actor [is] confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed” (Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432;  see, Fitz-Gerald v. Rich, 251 A.D.2d 1017, 674 N.Y.S.2d 232).

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