Abreu v Rodriguez-Rojas

[*1] Abreu v Rodriguez-Rojas 2008 NY Slip Op 52142(U) [21 Misc 3d 132(A)] Decided on October 29, 2008 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ
570361/08.

Jose Abreu, Plaintiff-Respondent,

against

Mary Rodriguez-Rojas, Claudio A. Paula, Defendants, -and- Bienvenido Gomez, Defendant-Appellant.

Defendant Gomez appeals from an order of the Civil Court of the City of New York, Bronx County (Francis M. Alessandro, J.), entered March 13, 2008, which denied his motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Francis M. Alessandro, J.), entered March 13, 2008, reversed, with $10 costs, motion granted and complaint dismissed as against defendant Gomez and, upon a search of the record, as against co-defendants Rodriguez-Rojas and Paula. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint and all cross claims against them.

Defendants established prima facie entitlement to summary judgment by submitting, inter alia, the affirmed report of a radiologist, who opined that plaintiff's MRI films revealed degenerative disc disease and no recent post-traumatic injury to the disc structures. Defendants also relied upon plaintiff's deposition testimony indicating that plaintiff was confined to home for only two to three weeks after the 2002 motor vehicle accident, and had injured his neck in another vehicular accident one year earlier (see Becerril v Sol Cab Corp., 50 AD3d 261 [2008]). In opposition, plaintiff failed to raise a triable issue as to whether he sustained a serious injury (see Insurance Law § 5102[d]). In light of defendant's evidence showing a prior traumatic injury as well as degenerative disc disease, it was incumbent upon plaintiff to present proof addressing defendant's asserted lack of causation. Plaintiff's submissions failed to discuss the effect of these preexisting conditions (see Brewster v FTM Servo, Corp., 44 AD3d 351 [2007]). Furthermore, plaintiff presented no objective findings of limitation of motion contemporaneous with the accident and no documentation of treatment (see Thompson v Abbasi, 15 AD3d 95 [*2][2005]). The first quantification of restrictions of motion was made approximately 17 months after the accident and is too remote to raise a triable issue as to causation (see Batts v Medical Express Ambulance Corp., 49 AD3d 294 [2008]).

While defendants Rodriguez-Rojas and Paula did not file a notice of appeal from the denial of their cross motion for summary judgment, this Court can search the record and grant summary judgment to a non-appealing party (see Merritt Hill Vineyards, Inc. v Windy Hgts. Vineyard, Inc., 61 NY2d 106, 110-112 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 29, 2008