| McIntosh v O'Brien |
| 2010 NY Slip Op 00115 [69 AD3d 585] |
| January 5, 2010 |
| Appellate Division, Second Department |
| John McIntosh, Appellant, v Dennis O'Brien et al.,Respondents. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (John J. Bello, Jr., of counsel), for respondentsDennis O'Brien, Garden State Engine & Equipment, Broadway Neon Sign Corporation, andBroadway National Sign Corporation. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andVictoria Scalzo of counsel), for respondents Anthony Genduso, New York City Department ofEducation, and City of New York. Stewart H. Friedman, Lake Success, N.Y. (David A. Harrison of counsel), for respondentsDavid Delgado and Summit Restaurant Reps & Sales.
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited byhis brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), datedNovember 28, 2007, as granted the motion of the defendants Dennis O'Brien, Garden StateEngine & Equipment, Broadway Neon Sign Corporation, and Broadway National SignCorporation for summary judgment dismissing the complaint insofar as asserted against them onthe ground that he did not sustain a serious injury within the meaning of Insurance Law §5102 (d), and granted that branch of the separate motion of the defendants David Delgado andSummit Restaurant Reps & Sales which was for summary judgment dismissing the cause ofaction with respect to the 90/180-day category of serious injury set forth under Insurance Law§ 5102 (d) insofar as asserted against them, and (2) from an order of the same court datedMay 21, 2008, which granted the motion of the defendants Anthony Genduso, New York CityDepartment of Education, and City of New York, and the cross motion of the defendants DavidDelgado and Summit Restaurant Reps & Sales, to dismiss the complaint and all cross claimsinsofar as asserted against them for failure to state a cause of action pursuant to CPLR 3211 (a)(7).
Ordered that the order dated November 28, 2007, is affirmed insofar as appealed from, and,upon searching the record, summary judgment is awarded to the defendants Anthony Genduso,New York City Department of Education, City of New York, Dennis Delgado, and SummitRestaurant Reps & Sales, dismissing the complaint and all cross claims insofar as asserted [*2]against them; and it is further,
Ordered that the appeal from the order dated May 21, 2008, is dismissed as academic in lightof our determination of the appeals from the order dated November 28, 2007; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.
The plaintiff's car was struck from behind by a motor vehicle operated by the defendantAnthony Genduso on the eastbound roadway of the Long Island Expressway, in Queens. Afterjoinder of issue, the defendants Dennis O'Brien, Garden State Engine & Equipment, BroadwayNeon Sign Corporation, and Broadway National Sign Corporation (hereinafter collectively theO'Brien defendants) moved for summary judgment dismissing the complaint insofar as assertedagainst them on the ground that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d). The defendants David Delgado and Summit Restaurant Reps& Sales (hereinafter together the Delgado defendants) moved for summary judgment dismissingthe complaint insofar as asserted against them on the same ground, and the defendants AnthonyGenduso, New York City Department of Education, and City of New York (hereinaftercollectively the municipal defendants) thereafter cross-moved, inter alia, for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them on the sameground. In the first order appealed from, the Supreme Court granted the O'Brien defendants'motion in its entirety, granted that branch of the Delgado defendants' motion which was forsummary judgment dismissing the cause of action with respect to the 90/180-day category setforth under Insurance Law § 5102 (d) insofar as asserted against them, and denied themunicipal defendants' cross motion. In the second order appealed from, the Supreme Courtgranted a subsequent motion of the municipal defendants, and cross motion of the Delgadodefendants, to dismiss the complaint and all cross claims insofar as asserted against them forfailure to state a cause of action.
Contrary to the plaintiff's contentions, the motions of the O'Brien defendants and theDelgado defendants for summary judgment were timely made. The plaintiff agreed, pursuant to astipulation entered into June 7, 2007, that motions for summary judgment could be made no laterthan August 17, 2007. Both motions were made prior to that date.
The evidence submitted established prima facie that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). At his deposition,the plaintiff acknowledged that he missed less than 90 days of work as a result of the subjectmotor vehicle accident (see Morris vEdmond, 48 AD3d 432 [2008]). Moreover, the affirmed medical reports of theneurologist and orthopedist retained by the O'Brien defendants concluded, based upon objectiverange-of-motion tests, that the plaintiff had full range of motion in his cervical and lumbarspines, left shoulder, and left knee. In opposition to the motions and cross motion for summaryjudgment, the plaintiff failed to present any range of motion findings which werecontemporaneous with the subject accident (id. at 433). The plaintiff also failed toproffer competent medical evidence that he sustained a medically-determined injury of anonpermanent nature which prevented him, for 90 of the 180 days following the subjectaccident, from performing his usual and customary activities (id.). Therefore, theevidence submitted by the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b]).
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 Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; DiLernia v Khan, 62 AD3d 644[2009]). Upon searching the record, we award summary judgment to the Delgado defendants andthe municipal defendants dismissing the complaint and all cross claims insofar as assertedagainst them on the ground that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d) (see CPLR 3212 [b]).
In light of our determination on the appeal from the order dated November 28, 2007, [*3]the appeal from the order dated May 21, 2008, has been renderedacademic. Rivera, J.P., Miller, Leventhal and Chambers, JJ., concur.