Opinion
2003-03875.
Decided March 29, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated March 10, 2003, which denied their motion for summary judgment on the issue of liability.
Bailly McMillan, LLP, White Plains, N.Y. (Brian M. Healy and Katherine Hall of counsel), for appellants.
Herzfeld Rubin, P.C., New York, N.Y. (Neil R. Finkston of counsel), for respondents.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiffs failed to submit evidence sufficient to establish their entitlement to summary judgment on the issue of liability ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557). Questions of fact exist as to whether the plaintiff pedestrian was negligent in crossing the roadway in a place other than an intersection or a crosswalk, and whether the defendant driver failed to exercise due care to avoid the accident ( see Schager v. Lino Bordi, Inc., 2 A.D.3d 828; Dragunova v. Dondero, 305 A.D.2d 449, 450; Garner v. Fox, 265 A.D.2d 525, 526).
RITTER, J.P., GOLDSTEIN, TOWNES and CRANE, JJ., concur.