| Cabrera v Shivecharan |
| 2016 NY Slip Op 01282 [136 AD3d 960] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Francis Cabrera, Respondent, v N.Shivecharan, Respondent, and Sankardial Yamraj et al.,Appellants. |
Cullen and Dykman, LLP, New York, NY (Diana Neyman of counsel), forappellants.
Shaevitz & Shaevitz, Jamaica, NY (Maryellen David and Steven Barbera ofcounsel), for plaintiff-respondent.
Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, NY[Yamile Al-Sullami], of counsel), for defendant-respondent.
In an action, inter alia, to recover damages for personal injuries, the defendantsSankardial Yamraj and Jairaj Yamraj appeal, as limited by their brief, from so much ofan order of the Supreme Court, Queens County (Agate, J.), dated June 6, 2014, as deniedtheir motion for summary judgment dismissing the complaint insofar as asserted againstthem on the ground that the plaintiff did not sustain a serious injury within the meaningof Insurance Law § 5102 (d) as a result of the subject accident and grantedthat branch of the cross motion of the defendant N. Shivecharan which was for summaryjudgment dismissing the cross claims asserted against her.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the cross motion of the defendant N. Shivecharan which was forsummary judgment dismissing the cross claims asserted against her, and substitutingtherefor a provision denying that branch of the cross motion; as so modified, the order isaffirmed insofar as appealed from, with one bill of costs to the defendants SankardialYamraj and Jairaj Yamraj payable by the defendant N. Shivecharan, and one bill of coststo the plaintiff payable by the defendants Sankardial Yamraj and Jairaj Yamraj, and thecross claims against the defendant N. Shivecharan are converted into third-party causesof action.
The plaintiff commenced this action to recover damages for personal injuriesresulting from a three-car motor vehicle accident that occurred on North Conduit Avenuein Queens. The plaintiff allegedly sustained personal injuries when a vehicle that he wasdriving was struck in the rear by a vehicle operated by the defendant N. Shivecharan.Shivecharan's vehicle was struck in the rear by a vehicle operated by the defendant JairajYamraj and allegedly owned by the defendant Sankardial Yamraj (hereinafter togetherthe Yamraj defendants). The parties dispute whether Shivecharan's vehicle was struck inthe rear by the Yamraj vehicle before or after Shivecharan's [*2]vehicle struck the plaintiff's vehicle.
The Yamraj defendants moved for summary judgment dismissing the complaintinsofar as asserted against them on the ground that the plaintiff did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of theaccident. Shivecharan cross-moved for summary judgment dismissing the complaint andthe Yamraj defendants' cross claims against her on the ground that she was not at fault inthe happening of the accident. The Supreme Court denied the Yamraj defendants' motionand granted Shivecharan's cross motion.
The Yamraj defendants failed to meet their prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).Their experts found significant limitations in the ranges of motion of the cervical andlumbar regions of the plaintiff's spine (see Miller v Bratsilova, 118 AD3d 761 [2014]), and theirevidentiary submissions demonstrated the existence of a triable issue of fact as towhether the alleged injuries to those regions were caused by the accident (see Straussberg v Marghub,108 AD3d 694, 695 [2013]; Kearney v Garrett, 92 AD3d 725, 726 [2012]).
Since the Yamraj defendants failed to meet their prima facie burden, it is unnecessaryto determine whether the papers submitted by the plaintiff in opposition were sufficientto raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Therefore, the Supreme Court properly denied the Yamraj defendants' motionfor summary judgment dismissing the complaint insofar as asserted against them.
However, the Supreme Court should have denied that branch of Shivecharan's crossmotion which was for summary judgment dismissing the cross claims asserted againsther. In support of her cross motion, she submitted, inter alia, the transcripts of herdeposition testimony and the deposition testimony of the plaintiff and Jairaj Yamraj.Given the differing testimony as to how the accident occurred, Shivecharan failed toestablish, prima facie, that she was not at fault in the happening of the accident and thatthe alleged negligence of the plaintiff and Jairaj Yamraj was the sole proximate cause ofthe accident (see Cabrera vMagussen, 130 AD3d 664 [2015]; Vavoulis v Adler, 43 AD3d 1154, 1155 [2007]; cf. Gavrilova v Stark, 129AD3d 907, 909 [2015]). Since Shivecharan failed to establish her prima facieentitlement to judgment as a matter of law, that branch of her cross motion which was forsummary judgment dismissing the cross claims asserted against her should have beendenied, without regard to the sufficiency of the opposing papers (see Alvarez vProspect Hosp., 68 NY2d at 324). Since the complaint was dismissed insofar asasserted against Shivecharan, we convert the cross claims against Shivecharan intothird-party causes of action (seeKumar v PI Assoc., LLC, 125 AD3d 609, 612 [2015]; Soodoo v LC, LLC, 116 AD3d1033, 1034 [2014]). Mastro, J.P., Leventhal, Austin and LaSalle, JJ., concur.