Rivera v. Paz ( 1998 )

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about December 18, 1997, which denied defendant-appellant’s motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs. .

Considering all of the factors pertinent to the question of whether defendant-appellant had a reasonable opportunity under the circumstances to avoid the subject accident (see, Carson v De Lorenzo, 238 AD2d 790, lv denied 90 NY2d 810), we agree with the motion court that appellant’s testimony does no more than raise a jury question as to whether appellant was in fact confronted with an emergency situation (see, e.g., Williams v Doran, 240 AD2d 349). Appellant did not present clear and unrefuted evidence that plaintiff driver was exclusively at fault for the accident (cf., Ruotolo v Ambu-Wagon, Inc., 206 AD2d 416). Concur — Milonas, J. P., Nardelli, Mazzarelli and Andrias, JJ.