Hernandez v Adelango Trucking

Hernandez v Adelango Trucking 2011 NY Slip Op 07674 Decided on November 1, 2011 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 1, 2011
Gonzalez, P.J., Tom, Sweeny, Renwick, Román, JJ.
350664/07 5903

[*1]5902-Nathaniel Hernandez, etc., et al., Plaintiffs-Respondents-Appellants,

v

Adelango Trucking, et al., Defendants-Respondents, Royal Coach Lines, Inc., et al., Defendants-Respondents-Appellants.




Stefano A. Filippazzo, P.C., Brooklyn (Stefano A. Filippazzo of
counsel), for appellants-respondents.
White Fleischner & Fino, LLP, New York (Deanna E. Hazen
of counsel), for respondents-appellants.
Law Office of Mary A. Bjork, Tarrytown (David Holmes of
counsel), for respondents.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about June 18, 2010, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Royal Coach Lines, Inc. and Olfemi John Osiyemi (Coach Lines defendants) for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs, and the complaint dismissed as against all defendants. The Clerk is directed to enter judgment accordingly. Appeal from aforesaid order to the extent it denied the motion of the Coach Lines defendants for summary judgment on the issue of liability, unanimously dismissed, without costs, as academic in light of the foregoing.

Defendants established, prima facie, that the infant plaintiff did not sustain a serious injury as a result of the 2006 vehicular accident, through the submission of affirmed reports of medical experts, who, upon examination, found that plaintiff had normal ranges of ankle motion and had recovered from an ankle sprain without any disability (see Canelo v Genolg Tr., Inc., 82 AD3d 584 [2011]). Moreover, other submissions, including the bill of particulars and plaintiff's deposition, which stated that he missed less than six days of school, sufficiently refuted his 90/180-day claim (see Williams v Baldor Specialty Foods, Inc., 70 AD3d 522 [2010]; see also Torres v Dwyer, 84 AD3d 626, 626-627 [2011]). In opposition, plaintiffs failed to raise a triable issue of fact.

Dismissal of the complaint as against defendants Adelango Trucking and Jose F. Veloso is warranted because, " if plaintiff[s] cannot meet the threshold for serious injury against one [set of] defendant[s, they] cannot meet it against the other'" (DeJesus v Paulino, 61 AD3d 605, 608 [2009], quoting Lopez v Simpson, 39 AD3d 420, 421 [2007]). [*2]

In light of the foregoing, the issue of liability is rendered academic with respect to all defendants (see Williams, 70 AD3d at 523).

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

ENTERED: NOVEMBER 1, 2011

CLERK