| Neuburger v Sidoruk |
| 2009 NY Slip Op 01627 [60 AD3d 650] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 32—Catherine Neuburger et al., Appellants, v IgorSidoruk et al., Respondents. |
—[*1] Bryan M. Rothenberg, Hicksville, N.Y. (Fiedelman & McGaw [Dawn C. DeSimone], ofcounsel), for respondents Igor Sidoruk and Grazyna Sidoruk. Russo & Apoznanski, Westbury, N.Y. (Susan J. Mitola of counsel), for respondents AdamKugler and Lauran Kugler. John P. Humphreys, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondents PeterNguyen and Huy Nguyen.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), datedSeptember 26, 2007, as, upon reargument, adhered to its original determination in an order datedFebruary 20, 2007, granting those branches of the separate motions of the defendants IgorSidoruk and Grazyna Sidoruk, the defendants Adam Kugler and Lauran Kugler, and thedefendants Peter Nguyen and Huy Nguyen, which were for summary judgment dismissing thecomplaint insofar as asserted against them on the ground that the plaintiff Catherine Neuburgerdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), anddenied that branch of their motion which was for leave to renew.
Ordered that the appeal from so much of the order dated September 26, 2007, as denied thatbranch of the plaintiff's motion which was for leave to renew is dismissed as academic, in lightof our determination on the appeal from so much of the order as was made upon reargument; andit is further,
Ordered that the order dated September 26, 2007, is reversed insofar as reviewed, uponreargument, the order dated February 20, 2007, is vacated, and thereupon, those branches of theseparate motions of the defendants Igor Sidoruk and Grazna Sidoruk, the defendants AdamKugler and Lauran Kugler, and the defendants Peter Nguyen and Huy [*2]Nguyen, which were for summary judgment dismissing thecomplaint insofar as asserted against them are denied; and it is further,
Ordered that one bill of costs are awarded to the plaintiffs.
As a general rule, we do not consider any issue raised on a subsequent appeal that wasraised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution,although we have the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins.Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]). Here, the plaintiffsappealed from the order dated February 20, 2007, which granted those branches of the separatemotions of the defendants Igor Sidoruk and Grazyna Sidoruk, the defendants Adam Kugler andLauran Kugler, and the defendants Peter Nguyen and Huy Nguyen which were for summaryjudgment dismissing the complaint insofar as asserted against them on the ground that theplaintiff Catherine Neuburger did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d). In the order appealed from dated September 26, 2007, the Supreme Court,inter alia, granted that branch of the plaintiffs' motion which was for leave to reargue and, uponreargument, adhered to the original determination. Meanwhile, the earlier appeal was dismissedby decision and order on motion of this Court dated March 4, 2008, for failure to perfect inaccordance with the rules of this Court (see 22 NYCRR 670.8 [h]). While the betterpractice would have been for the plaintiffs to withdraw the prior appeal, rather than abandon it,nonetheless, we exercise our discretion to review the issues raised on the appeal from so much ofthe order dated September 26, 2007, as was made upon reargument (see DiGiaro v Agrawal, 41 AD3d764 [2007]; Cesar v Highland CareCtr., Inc., 37 AD3d 393 [2007]).
On reargument, the Supreme Court should not have adhered to its original determinationawarding the defendants summary judgment. The defendants failed to meet their prima facieburdens of showing that the plaintiff Catherine Neuburger did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accidents (see Tourev Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).The bills of particulars served on the defendants all alleged that the injured plaintiff hadsustained a medically determined injury of a nonpermanent nature which prevented her fromperforming substantially all of the material acts constituting her usual and customary activitiesfor not less then 90 days during the 180 days immediately following the accident (hereinafter the90/180 day category). The defendants' examining orthopedist and neurologist conducted separateexaminations of the injured plaintiff over three years after the subject accidents. Those expertsnoted in their respective reports that [*3]the injured plaintiffmissed 18 months of work as a result of the injuries sustained in the subject accidents. Neitherphysician related his medical findings to the 90/180 day category of serious injury. Thus, thedefendants failed to make a prima showing that the injured plaintiff had no injury in the 90/180category (see Shaw v Jalloh, 57AD3d 647 [2008]; Scinto v Hoyte,57 AD3d 646 [2008]; Ali vRivera, 52 AD3d 445 [2008]; Yung v Eager, 51 AD3d 638 [2008]; Tinsley v Bah, 50 AD3d 1019[2008]).
Since the defendants failed to satisfy their prima facie burdens, it is unnecessary to considerwhether the papers submitted by the plaintiffs were sufficient to raise a triable issue of fact (see Shaw v Jalloh, 57 AD3d 647[2008]; Scinto v Hoyte, 57 AD3d646 [2008]; Ali v Rivera, 52AD3d 445, 446 [2008]).
In light of the foregoing, the plaintiffs' contentions regarding the denial of that branch oftheir motion which was for leave to renew has been rendered academic. Spolzino, J.P., Santucci,Miller, Dickerson and Eng, JJ., concur.