Opinion
January 17, 1989
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Ordered that the order is affirmed, with costs.
While we conclude that the evidence presented by the plaintiff is sufficient to create issues of fact which would permit a jury to infer that the defendants were negligent (see, e.g., Loeffler v Rogers, 136 A.D.2d 824), we do not find the excerpts of the plaintiff's vague examination before trial testimony submitted in support of his motion for summary judgment to be so convincing or compelling as to render such an inference inescapable (see generally, George Foltis, Inc. v City of New York, 287 N.Y. 108; Farina v Pan Am. World Airlines, 116 A.D.2d 618). Indeed, this testimony, which was also appended to an affirmation of the defendants' counsel in opposition to the motion (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320; Olan v Farrell Lines, 64 N.Y.2d 1092), sufficed to raise issues with respect to whether the accident was caused by the sudden deflation of a tire on the vehicle operated by the plaintiff and whether the plaintiff was guilty of culpable conduct with respect to the accident. Accordingly, a trial is necessary to determine the merits of these issues. Mollen, P.J., Bracken, Sullivan and Harwood, JJ., concur.