| DiLernia v Khan |
| 2009 NY Slip Op 03689 [62 AD3d 644] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Anthony DiLernia et al., Appellants, v Abdul M. Khan etal., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents Abdul M. Khan and Jean M. Prince. Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for respondents Sarah S. Morseand Sarah C. Morse.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Dollard, J.), dated February 27, 2008, which granted themotion of the defendants Sarah S. Morse and Sarah C. Morse for summary judgment dismissingthe complaint insofar as asserted against them on the ground that the plaintiff Anthony DiLerniadid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), anddenied, as academic, the plaintiffs' cross motion for summary judgment on the issue of liability.
Ordered that the appeal from so much of the order as denied the plaintiffs' cross motion forsummary judgment on the issue of liability insofar as asserted against the defendants Abdul M.Khan and Jean M. Prince is dismissed as academic in light of our determination searching therecord and awarding summary judgment dismissing the complaint insofar as asserted againstthose defendants; and it is further,
Ordered that the order is affirmed insofar as reviewed, with one bill of costs, and uponsearching the record, summary judgment is awarded to the defendants Abdul M. Khan and JeanM. Prince dismissing the complaint insofar as asserted against them.[*2]
On appeal, the plaintiffs do not raise any argumentsrelating to the Supreme Court's determination that the defendants Sarah S. Morse and Sarah C.Morse met their prima facie burden of showing that the plaintiff Anthony DiLernia did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiffs failed to raise a triableissue of fact. Initially, the reports they submitted from Dr. Fred Jones, the injured plaintiff'streating chiropractor, were without probative value since they were not in affidavit form (see Kunz v Gleeson, 9 AD3d 480[2004]; Doumanis v Conzo, 265 AD2d 296 [1999]).
The report of Dr. Ali Guy, the injured plaintiff's examining physician, failed to raise a triableissue of fact because, while he noted significant limitations in the range of motion of the injuredplaintiff's lumbar spine based on a recent examination, neither he nor the plaintiffs profferedcompetent medical evidence which revealed the existence of significant limitations in the rangeof motion of the injured plaintiff's lumbar spine that were contemporaneous with the subjectaccident (see Leeber v Ward, 55AD3d 563 [2008]; Ferraro v RidgeCar Serv., 49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]).
Finally, the plaintiffs failed to submit competent medical evidence that the injuries allegedlysustained by the injured plaintiff in the subject accident rendered him unable to performsubstantially all of his daily activities for not less than 90 days of the first 180 days subsequent tothe subject accident (see Roman v FastLane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569[2000]).
This Court has the authority to search the record and award summary judgment to anonappealing party with respect to an issue that was the subject of the motion before theSupreme Court (see Garcia v Lopez59 AD3d 593 [2009]; Michel vBlake, 52 AD3d 486 [2008]; Marrache v Akron Taxi Corp., 50 AD3d 973 [2008]; Colon v Vargas, 27 AD3d 512,514 [2006]; cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]). Uponsearching the record, we award summary judgment to the defendants Abdul M. Khan and JeanM. Prince dismissing the complaint insofar as asserted against them on the ground that theinjured plaintiff did not sustain a serious injury within the meaning of the no-fault statute(see CPLR 3212 [b]). Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.