RUOCCO v. MULHALL

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]).