Ruocco v. Mulhall

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated May 11, 2000, which denied her motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. There are triable issues of fact as to whether the defendant exercised due care to avoid the accident (see, Garner v Fox, 265 AD2d 525; Calico v Phillips, 63 AD2d 955; Lo Giudice v Riedel, 32 AD2d 950; Vehicle and Traffic Law § 1146), and whether the injured plaintiff failed to exercise due care in crossing the roadway at 407 a place other than an intersection or a crosswalk (see, Thoma v Ronai, 189 AD2d 635, affd 82 NY2d 736; Holt v New York City Tr. Auth., 151 AD2d 460; Cincotta v Johnson, 130 AD2d 539; Rodriguez v Robert, 47 AD2d 548; Vehicle and Traffic Law § 1152 [a]). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.