Nazario v. Kohtio (49 A.D.3d 429, 2008)

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.