Bouri v Jackson

Bouri v Jackson 2019 NY Slip Op 08551 Decided on November 27, 2019 Appellate Division, Second 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 27, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.
2016-08325
2016-08327
2016-08759
(Index No. 507882/13)

[*1]Abdelhak Bouri, respondent,

v

Travis Jackson, appellant.

Picciano & Scahill, P.C., Bethpage, NY (Andrea E. Ferrucci of counsel), for appellant.

Jaroslawicz & Jaros PLLC, New York, NY (David Tolchin of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Kings County (Kathy J. King, J.), dated June 8, 2016, (2) an order of the same court dated July 20, 2016, and (3) an order of the same court dated August 3, 2016. The order dated June 8, 2016, insofar as appealed from, conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer unless the defendant appeared for his deposition on July 8, 2016. The order dated July 20, 2016, granted that branch of the plaintiff's motion which was to strike the defendant's answer. The order dated August 3, 2016, denied, as academic, the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the appeal from the order dated June 8, 2016, is dismissed, as the portion of the order appealed from was superseded by the order dated July 20, 2016; and it is further,

ORDERED that the order dated July 20, 2016, is affirmed; and it is further,

ORDERED that the order dated August 3, 2016, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

For the reasons discussed in our decision and order on a related appeal (see Bouri v Jackson, ___ AD3d ___ [Appellate Division Docket No. 2017-07680; decided herewith]), the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer and denied, as academic, the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

The contention raised at Point II of the plaintiff's brief is not properly before this Court (cf. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546).

RIVERA, J.P., AUSTIN, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court