Pineda v Moore

Pineda v Moore 2013 NY Slip Op 07858 Decided on November 26, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2013
Friedman, J.P., Renwick, Freedman, Feinman, JJ.
11181 308354/08 300950/09

[*1]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.

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 AD3d 436 [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 AD3d 422, 423-424 [1st Dept 2006]; Jean—Baptiste v Tobias, 88 AD3d 962 [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 AD3d 466 [1st Dept 2010]; Bray v Rosas, 29 AD3d at 424). [*2]

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 AD3d 265, 266—267 [1st Dept 2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK