Opinion
Submitted February 7, 2001.
March 5, 2001.
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.
Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for appellant.
Davis Hersh, LLP, Hauppauge, N.Y. (Michele A. Trabold-Bellino of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
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 A.D.2d 525; Calico v. Phillips, 63 A.D.2d 955; Lo Giudice v. Riedel, 32 A.D.2d 950; Vehicle and Traffic Law § 1146), and whether the injured plaintiff failed to exercise due care in crossing the roadway at a place other than an intersection or a crosswalk (see, Thoma v. Ronai, 189 A.D.2d 635, affd 82 N.Y.2d 736; Holt v. New York City Tr. Auth., 151 A.D.2d 460; Cincotta v. Johnson, 130 A.D.2d 539; Rodriguez v. Robert, 47 A.D.2d 548; Vehicle and Traffic Law § 1152[a]).