Douso v Dandia

[*1] Douso v Dandia 2006 NY Slip Op 51429(U) [12 Misc 3d 144(A)] Decided on July 17, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1351 N C.

JAIME DOUSO, Appellant,

against

KELLY A. DANDIA, STEVEN PITNICK and ALLISON PITNICK, Respondents.

Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaikin, J.), entered March 14, 2005. The order granted the motion of defendant Kelly A. Dandia and the cross motion of defendants Steven Pitnick and Allison Pitnick for summary judgment, and denied plaintiff's cross motion for summary judgment on the issue of liability.

Order modified by providing that defendants' motion and cross motion for summary judgment is denied, and plaintiff's cross motion for summary judgment on the issue of liability is granted as against defendant Kelly A. Dandia; as so modified, affirmed without costs. [*2]

Defendants moved and cross-moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury. While the medical affirmations of the examining physicians submitted in support of defendants' motions quantified plaintiff's ranges of motion and compared most of said ranges to what is normal, they failed to compare plaintiff's range of motion to normal with respect to straight leg raising and the Laseque test. Accordingly, defendants' moving papers were insufficient to establish a prima facie entitlement to summary judgment (see Yashayev v Rodriguez, 28 AD3d 651 [2006]; Tchjevskaia v Chase, 15 AD3d 389 [2005]; Marquez v Oballe, 14 AD3d 667 [2005]). Under these circumstances, we need not consider the sufficiency of plaintiff's opposition papers (see Torres v Safety Cab Corp., 25 AD3d 548 [2006]; Barrett v Jeannot, 18 AD3d 679 [2005]).

With respect to plaintiff's cross motion for summary judgment on the issue of liability, to the faultless plaintiff passenger involved in an intersection accident, the degrees of comparative negligence which may exist between defendant Dandia and defendants Pitnick are not material. Since defendant Dandia's vehicle was controlled by a stop sign and she proceeded across North Jerusalem Avenue while her view of the intersection was blocked by a bus, and there was no traffic control device controlling [*3]
defendants Pitnicks' vehicle, defendant Dandia was clearly negligent (Klein v Byalik, 1 AD3d 399 [2003]; see Rossani v Rana, 8 AD3d 548 [2004]). Consequently, plaintiff is entitled to summary judgment on the issue of liability as against Dandia (see Kiernan v Edwards, 97 AD2d 750 [1983]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 17, 2006