| Sirma v Beach |
| 2009 NY Slip Op 01210 [59 AD3d 611] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Adi Sirma et al., Respondents, and Izik Binjamin, Also Known asBinyamin Twito, Respondent-Appellant, v Gervais Beach et al.,Appellants-Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for appellants-respondents Nikolaos Topaloglou and Adam B. Kaous. Phillips, Krantz & Associates, New York, N.Y. (Lisa Michael of counsel), forrespondent-appellant and respondents.
In an action to recover damages for personal injuries, the defendants Nikolaos Topaloglouand Adam Kaous appeal from so much of an order of the Supreme Court, Kings County (Knipel,J.), dated February 27, 2008, as denied those branches of their motion which were for summaryjudgment dismissing the complaint insofar as asserted against them by the plaintiffs Adi Sirma,Barak Ben Shlomo, and Idit Naimi on the ground that none of those plaintiffs sustained a seriousinjury within the meaning of Insurance Law § 5102 (d), the defendants Gervais Beach andDonnette Coote separately appeal, as limited by their brief, from so much of the same order asdenied those branches of their separate motion which were for summary judgment dismissing thecomplaint insofar as asserted against them by the plaintiffs Adi Sirma and Barak Ben Shlomo onthe ground that neither of those plaintiffs sustained a serious injury within the meaning ofInsurance Law § 5102 (d), and the plaintiff Izik Binyamin cross-appeals from the sameorder.
Ordered that the cross appeal is dismissed as abandoned; and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion of the defendants Nikolaos Topaloglou and Adam Kaous whichwere [*2]for summary judgment dismissing the complaint insofaras asserted against them by the plaintiffs Barak Ben Shlomo and Idit Naimi and that branch ofthe separate motion of the defendants Gervais Beach and Donnette Coote which was forsummary judgment dismissing the complaint insofar as asserted against them by the plaintiffBarak Ben Shlomo and substituting therefor provisions granting those branches of the motionand that branch of the separate motion; as so modified, the order is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the defendants.
In the early morning of December 31, 2005, at the intersection of Broadway and West 96thStreet in Manhattan, the four plaintiffs were passengers in a taxi cab owned by the defendantAdam Kaous and operated by the defendant Nikolaos Topaloglou (hereinafter together the taxidefendants), which collided with a motor vehicle owned by the defendant Gervais Beach andoperated by the defendant Donnette Coote (hereinafter together the auto defendants). Theplaintiffs thereafter commenced the present action to recover damages for personal injuries, withall four plaintiffs alleging various orthopedic injuries, and the plaintiff Idit Naimi also allegingthat she had sustained scarring on her nose. After joinder of issue, the taxi defendants moved forsummary judgment dismissing the complaint in its entirety insofar as asserted against them, andthe auto defendants separately moved for summary judgment dismissing the complaint insofar asasserted against them by the plaintiffs Adi Sirma, Barak Ben Shlomo, and Izik Binyamin. TheSupreme Court granted those branches of the motion and cross motion which were for summaryjudgment dismissing the complaint insofar as asserted against the defendants by Binyamin, butdenied the remaining branches of the motion and cross motion. The taxi defendants appeal fromso much of the order as denied those branches of their motion which were for summary judgmentdismissing the complaint insofar as asserted against them by Sirma, Shlomo, and Naimi, and theauto defendants separately appeal from so much of the order as denied those branches of theirseparate motion which were for summary judgment dismissing the complaint insofar as assertedagainst them by Sirma and Shlomo. Binyamin cross-appeals from so much of the order asgranted those branches of the motion and cross motion which were for summary judgmentdismissing the complaint insofar as asserted by him.
The Supreme Court properly denied the branches of the separate motions which were forsummary judgment dismissing the complaint insofar as asserted by Sirma. The taxi defendantsfailed to make a prima facie showing that Sirma did not sustain a serious injury within InsuranceLaw § 5102 (d). Although the affirmation of the taxi defendants' orthopedist concludesthat Sirma was not suffering from an accident-related serious injury, the affirmation disclosesthat the orthopedist recorded limitations in Sirma's range of motion in his lumbar spine (see Newberger v Hirsch, 49 AD3d700 [2008]; Tchjevskaia v Chase,15 AD3d 389 [2005]). While the auto defendants did make out a prima facie case as toSirma, the affirmation of the taxi defendants' orthopedist created a question of fact sufficient topreclude a grant of summary judgment.
However, the medical evidence submitted by the taxi defendants and auto defendants insupport of their respective motions with respect to Shlomo established, prima facie, that Shlomodid not sustain a serious injury within Insurance Law § 5102 (d) (see Toure v AvisRent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957[1992]). In opposition, Shlomo failed to raise a triable issue of fact, as the affirmed report of theplaintiffs' expert failed to adequately quantify the restrictions he found in Shlomo's cervical andlumbar range of motion at his initial examination of Shlomo five days after the accident (see Duke v Saurelis, 41 AD3d 770[2007]).[*3]
Further, the taxi defendants established, prima facie, thatNaimi did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)(Toure v Avis Rent A Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79 NY2d at956-957). In opposition, Naimi failed to raise a triable issue of fact, as the affirmed report of theplaintiffs' expert failed to adequately quantify the restrictions he found in Naimi's cervical andlumbar range of motion at his initial examination of Naimi 19 days after the accident (see Duke v Saurelis, 41 AD3d 770[2007]). Moreover, Naimi did not oppose the taxi defendants' prima facie showing that she didnot sustain a "significant disfigurement" within the meaning of Insurance Law § 5102 (d)(cf. Lynch v Iqbal, 56 AD3d621 [2008]; Sirmans v Mannah, 300 AD2d 465 [2002]).
The cross appeal must be dismissed as abandoned (see Bibas v Bibas, 58 AD3d 586 [2009]), as therespondent-appellant does not seek reversal of any portion of the order in his brief. Rivera, J.P.,Angiolillo, Carni and McCarthy, JJ., concur.