Jones v. Hampshire Hotels & Resorts LLC

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J-), entered October 7, 2011, which denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff alleges that he was injured when, while crossing an intersection within the crosswalk, he was struck by defendants’ vehicle. The evidence, including defendant driver’s testimony that his vehicle was not in the crosswalk at the time of contact, presents triable issues of fact as to whether plaintiff was indeed in the crosswalk at the time of impact or had failed to exercise due care to avoid the accident (see e.g. Wein v Robinson, 92 AD3d 578 [1st Dept 2012]; Villaverde v Santiago-Aponte, 84 AD3d 506 [1st Dept 2011]). Concur—Mazzarelli, J.P., Andrias, DeGrasse, Richter and Clark, JJ.