Dragunova v. Dondero

—In an action to recover dam 450 ages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated April 18, 2002, as, upon re-argument, adhered to the prior determination in an order of the same court, dated February 14, 2002, which granted the plaintiffs motion for summary judgment on the issue of liability. Ordered that the order dated April 18, 2002, is reversed insofar as appealed from, on the law, with costs, the order dated February 14, 2002, is vacated, and the motion for summary judgment on the issue of liability is denied. Contrary to the plaintiffs contention, there are triable issues of fact as to whether the plaintiff pedestrian was comparatively negligent for, inter alia, failing to exercise due care when crossing the roadway in a place other than an intersection or a crosswalk (see Ruocco v Mulhall, 281 AD2d 406 [2001]; Garner v Fox, 265 AD2d 525 [1999]; Vehicle and Traffic Law § 1152 [a]; see generally Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]), and whether the defendant motorist exercised due care to avoid the accident (see Garner v Fox, supra; Finkel v Benoit, 211 AD2d 749 [1995]; Vehicle and Traffic Law § 1146). Altman, J.P., Smith, McGinity and Cozier, JJ., concur.