(dissenting). We respectfully dissent. The record contains sufficient admissible evidence to raise a question of fact as to whether defendant Michael Y. DeLosa was negligent in the operation of his vehicle by failing to drive at an appropriately reduced speed considering the existing weather conditions and following the vehicle in front of him too closely. The road at the time of the accident was covered with slush, not plowed nor sanded or salted. Linda Nichols described the road condition as “really bad” and “very slippery.” DeLosa testified that he was traveling between 35 and 40 miles per hour, had his lights and wipers on and was three to four car lengths behind the Nichols vehicle. DeLosa further testified that the existing road conditions required extra caution and vigilance. From that evidence it could be inferred that DeLosa was operating his vehicle at an unsafe speed and was following the Nichols vehicle too closely. “[T]he mere fact that an emergency situation subsequently develops does not insulate [DeLosa] from liability for prior tortious conduct—such as traveling at an excessive rate of speed or maintaining an unsafe following distance— which contributed to bringing about the emergency, and thus indirectly caused the accident” (Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994] [Yesawich Jr., J., dissenting], revd on dissenting mem 84 NY2d 835 [1994]; Gage v Raffensperger, 234 AD2d 751, 752 [1996]). Accordingly, we would affirm Supreme Court’s order.
Mugglin, J., concurs. Ordered that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendants Michael Y DeLosa and Allen’s Elumbing, Heating and Air Conditioning, Inc. and complaint dismissed against them.