Abusbeih v AKK, Inc.

[*1] Abusbeih v AKK, Inc. 2009 NY Slip Op 51774(U) [24 Misc 3d 143(A)] Decided on August 17, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570256/09.

Khalil Abusbeih, Plaintiff-Respondent,

against

AKK, Inc. and Samseh S. Ahmed, Defendants-Appellants, Alan Bell, Robert Cab Corp., Ellen Skafidas and Chelsea Operating, Inc., Defendants, and Alain Samba, Bell Management & Leasing Corp., Defendants-Respondents.

Defendants AKK, Inc. and Samseh S. Ahmed appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 2, 2008, which denied their motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 2, 2008, reversed, with $10 costs, motion granted, the complaint dismissed as against defendants-appellants, and, upon a search of the record, as against defendants Alain Samba and Bell Management & Leasing Corp. The Clerk is directed to enter judgment accordingly.

In opposition to defendants' prima facie showing that plaintiff did not sustain a "serious injury" (Insurance Law § 5102[d]), plaintiff failed to raise a triable issue. The medical affirmations submitted by plaintiff did not include the requisite quantitative assessment of range of motion limitations based on objective testing contemporaneous to the motor vehicle accident (see Cruz v Aponte, 60 AD3d 431 [2009]; Thompson v Abbasi, 15 AD3d 95 [2005]). Nor did plaintiff's doctors adequately address the findings of defendants' radiologist that plaintiff's neck, [*2]back and knee abnormalities were unrelated to the accident. Additionally, the record does not disclose the existence of a triable issue with respect to plaintiff's 90/180-day claim.

Although defendants-respondents did not file a notice of appeal from the denial of their cross motion for summary judgment, we search the record and grant them summary judgment, since plaintiff cannot meet the threshold for serious injury (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 17, 2009