General
Samuel Nazario, Respondent, v. Anthony L. Kohtio, Appellant
49 A.D.3d 429852 N.Y.S.2d 841·New York Supreme Court, Appellate Division·2008·NY
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Opinion
Samuel Nazario, Respondent, v Anthony L. Kohtio, Appellant.
[852 NYS2d 841]
[MAJORITY]
Summary judgment was properly denied in this action where plaintiff alleges he was injured when he was struck by defendant’s motor vehicle while crossing the street. Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law since there exist triable issues as to whether defendant exercised due care to avoid the collision (see Vehicle and Traffic Law § 1146), and whether plaintiff was comparatively negligent by failing to exercise due care while admittedly crossing the street at a point other than an intersection or a crosswalk (see Vehicle and Traffic Law § 1152 [a]; Ryan v Budget Rent a Car, 37 AD3d 698 [2007]). Concur—Tom, J.P., Friedman, Nardelli, Catterson and Moskowitz, JJ.