In Mazzarella v. McVeigh, 283 A.D.2d 557, 725 N.Y.S.2d 70 (2d Dept 2001), a case involved with defendant driver leaving the road into a ditch to avoid hitting a deer in rural Delaware County, summary judgment was granted in Supreme Court. The Appellate Division reversed, finding that there was an issue of material fact for a jury to consider.