Opinion
2013-11-26
Antonio PINEDA, Plaintiff–Appellant, v. Wesley Werner MOORE, et al., Defendants–Respondents. Juton Robinson, Plaintiff, v. Moore Truckin, et al., Defendants.
Mitchell Dranow, Sea Cliff, for appellant. Epstein Gialleonardo & Rayhill, Elmsford (David M. Heller of counsel), for respondents.
Mitchell Dranow, Sea Cliff, for appellant. Epstein Gialleonardo & Rayhill, Elmsford (David M. Heller of counsel), for respondents.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered May 4, 2012, which, to the extent appealed from as limited by the briefs, granted defendants Wesley Werner Moore & Truckin Moore's cross motion for summary judgment dismissing plaintiff's complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendants failed to establish their entitlement to judgment as a matter of law. One of defendants' examining physicians found limited ranges of motion in plaintiff's lumbar spine raising a triable issue of fact on the issue of whether plaintiff suffered a serious injury within the meaning of Insurance Law § 5102(d) ( see Chakrani v. Beck Cab Corp., 82 A.D.3d 436, 917 N.Y.S.2d 862 [1st Dept.2011] ). Defendants also failed to meet their burden of showing that plaintiff's injuries are not causally related to the accident. They submitted insufficient evidence in support of their claim that the injuries are degenerative or were caused by a subsequent accident ( see Bray v. Rosas, 29 A.D.3d 422, 423–424, 815 N.Y.S.2d 69 [1st Dept.2006]; Jean–Baptiste v. Tobias, 88 A.D.3d 962, 931 N.Y.S.2d 645 [2nd Dept.2011] ). Furthermore, even assuming that defendants met their initial burden, plaintiff's submissions are sufficient to defeat the motion ( see Frias v. James, 69 A.D.3d 466, 895 N.Y.S.2d 335 [1st Dept.2010]; Bray v. Rosas, 29 A.D.3d at 424, 815 N.Y.S.2d 69).
Finally, we note that the motion court properly dismissed plaintiff's 90/180–day claims, which, in any event, plaintiff has abandoned on appeal ( see McHale v. Anthony, 41 A.D.3d 265, 266–267, 839 N.Y.S.2d 33 [1st Dept.2007] ). FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ., concur.