| Alexander v Gordon |
| 2012 NY Slip Op 04115 [95 AD3d 1245] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Jeannie Alexander et al., Appellants, v Shawn R. Gordon etal., Respondents. |
—[*1] Adams, Hanson, Finder, Hughes, Rego, Kaplan & Fishbein, Lake Success, N.Y. (Edward B.Suh of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Bayne, J.), dated March 11, 2011, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Jeannie Alexander did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and denied, as untimely and academic, their cross motion, in effect, forsummary judgment on the issues of serious injury and liability.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe defendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Jeannie Alexander did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and substituting therefor a provision denying the motion, (2) by deleting theprovision thereof denying, as untimely and academic, that branch of the plaintiffs' cross motionwhich was, in effect, for summary judgment on the issue of serious injury, and substitutingtherefor a provision denying that branch of the cross motion on the merits, and (3) by deleting theprovision thereof denying, as untimely and academic, that branch of the plaintiffs' cross motion,in effect, which was for summary judgment on the issue of liability, and substituting therefor aprovision denying that branch of the cross motion as untimely; as so modified, the order isaffirmed, without costs or disbursements.
The defendants failed to meet their prima facie burden of showing that the plaintiff JeannieAlexander (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Although thedefendants asserted that the alleged injuries to the cervical and lumbar regions of the injuredplaintiff's spine did not constitute serious injuries within the meaning of Insurance Law §5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d at 352; Gaddy v Eyler, 79NY2d at 955-956), the defendants' examining orthopedic surgeon recounted, in an affirmedreport submitted in support of the defendants' motion for summary judgment, thatrange-of-motion testing performed during the examination revealed significant [*2]limitations in the regions (see Jones v Anderson, 93 AD3d 640, 641 [2012]; Cues v Tavarone, 85 AD3d 846[2011]). In addition, the defendants failed to adequately address the plaintiffs' claim that as aresult of the subject accident, the injured plaintiff sustained a medically-determined injury orimpairment of a nonpermanent nature which prevented her from performing substantially all ofthe material acts which constituted her usual and customary daily activities for not less than 90days during the 180 days immediately following the subject accident (see Rouach v Betts, 71 AD3d 977[2010]). Finally, the defendants failed to adequately address the plaintiffs' claim that as a result ofthe subject accident, one of the injured plaintiff's bones sustained a fracture (see Brourman v Gorokhovsky, 89AD3d 660 [2011]). Since the defendants failed to meet their prima facie burden, theSupreme Court should have denied their motion for summary judgment dismissing thecomplaint, without considering whether the plaintiffs' opposition papers were sufficient to raise atriable issue of fact (id. at 660; see Cues v Tavarone, 85 AD3d at 846-847;Rouach v Betts, 71 AD3d at 977-978).
The plaintiffs' cross motion for summary judgment was untimely (see McNally v Beva Cab Corp., 45AD3d 820, 821 [2007]). Furthermore, the plaintiffs failed to establish "good cause" for theirdelay in making the cross motion (CPLR 3212 [a]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726[2004]; Brill v City of New York, 2NY3d 648, 652 [2004]). However, a court may entertain an untimely cross motion forsummary judgment if the court is deciding a timely motion for summary judgment made onnearly identical grounds (see Grande vPeteroy, 39 AD3d 590, 591-592 [2007]). Thus, because the defendants made a timelymotion for summary judgment dismissing the complaint on the ground that the injured plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102 (d), thatbranch of the plaintiffs' cross motion which was, in effect, for summary judgment on the issue ofserious injury can be entertained (see Grande v Peteroy, 39 AD3d at 591-592; cf. Lennard v Khan, 69 AD3d 812,814 [2010]). In contrast, that branch of the plaintiffs' cross motion which was for summaryjudgment on the issue of liability cannot be entertained, as the issue of liability is a "matterseparate from the issue of" serious injury (Reid v Brown, 308 AD2d 331, 332 [2003]).
Contrary to the plaintiffs' contention, they failed to demonstrate their entitlement to judgmentas a matter of law with respect to their claim of serious injury based on the alleged fracture. Aplaintiff moving for summary judgment on the issue of serious injury must establish, prima facie,that he or she sustained a serious injury within the meaning of Insurance Law § 5102 (d),and "that the [serious] injury was causally related to the accident" (Kapeleris v Riordan, 89 AD3d903, 904 [2011]; see Elshaarawy vU-Haul Co. of Miss., 72 AD3d 878, 881 [2010]). Although the plaintiffs submittedcertain evidence establishing, prima facie, that one of the injured plaintiff's vertebrae had afracture, the plaintiffs, who submitted certain evidence showing that the fracture was "ofindeterminate age," failed to establish, prima facie, that the fracture was caused by the accident(cf. Diliberto v Barberich, 94 AD3d803, 804 [2012]; Dabbs v Kelly, 245 AD2d 482, 482-483 [1997]). Accordingly, thatbranch of the plaintiff's civil motion which was, in effect, for summary judgment or the issue ofsummary judgment must be denied on the merits. Skelos, J.P., Balkin, Leventhal and Austin, JJ.,concur.