| Sentino v Valerio |
| 2010 NY Slip Op 03431 [72 AD3d 1063] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Cara Sentino, Respondent, v Francis A. Valerio,Defendant, and Cristobal F. Espinal et al., Appellants. |
—[*1] Erlitz & Erlitz, LLP, Brooklyn, N.Y. (Michael R. Freeda of counsel), for respondent. James J. Toomey, New York, N.Y. (James Toner of counsel), for defendant.
In an action to recover damages for personal injuries, the defendants Cristobal F. Espinal andAracenas Trans, Inc., appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Martin, J.), dated June 9, 2009, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them on the grounds that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)and that they were not at fault in the happening of the accident.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arises from a three-car accident which occurred on the morning of January 1,2005, on Pennsylvania Avenue in Brooklyn. At that time, a motor vehicle operated by thedefendant Francis A. Valerio collided with vehicle owned by the defendant Aracenas Trans, Inc.,and operated by the defendant Cristobal F. Espinal (hereinafter together the appellants), therebypropelling the latter vehicle into traffic moving in the opposite direction, where it was struck bya motor vehicle in which the plaintiff was riding. The appellants moved for summary judgmentdismissing the complaint insofar as asserted against them on the grounds that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) and that theywere not at fault in the happening of the accident. However, the evidence submitted by theappellants in support of their motion failed to demonstrate the absence of triable issues of factwith regard to either claimed basis for summary judgment relief (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Espinal testified at his deposition that, prior to the occurrence, he was traveling in the leftlane of the northbound roadway of Pennsylvania Avenue, when Valerio's motor vehicle pulledout of a bus stop, crossed the right lane of the northbound roadway, and entered the left lane ofthe northbound roadway, a distance of about two car-lengths in front of Espinal's vehicle. Thistestimony raised a triable issue of fact (see CPLR 3212 [b]) as to whether Espinal'ssubsequent failure to avoid a collision with [*2]Valerio's vehicleproximately resulted from negligence on his part in driving at an excessive rate of speed inviolation of Vehicle and Traffic Law § 1180 and in failing to pay attention to roadconditions. Moreover, the affirmed medical report prepared by neurologist Edward M. Weiland,which the appellants submitted in support of their motion, failed to specify the degree or range ofmotion which the plaintiff was able to achieve with her right hand, and to compare such findingsto what is normal (see Page vBelmonte, 45 AD3d 825 [2007]). Accordingly, the Supreme Court properly denied theappellants' motion.
Valerio's contentions are not properly before this Court since he did not file a notice ofappeal from the order (see CPLR 5515; Show Lain Cheng v Young, 60 AD3d 989, 991 [2009]). Skelos,J.P., Austin, Roman and Sgroi, JJ., concur.