Marquis v. Eisenstein

5 A.D.3d 741, 773 N.Y.S.2d 596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2004
• Status: Published

Opinion

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.

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 NY2d 851 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). 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 AD3d 828 [2003]; Dragunova v Dondero, 305 AD2d 449, 450 [2003]; Garner v Fox, 265 AD2d 525, 526 [1999]). Ritter, J.P., Goldstein, Townes and Crane, JJ., concur.