Opinion
2006-761 Q C.
Decided December 16, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayerson, J.), entered November 30, 2005. The order denied the motion by defendant New York City Transit Authority for summary judgment dismissing the complaint as to it and granted so much of the cross motion of defendants-respondents Metropolitan Suburban Bus Authority and Oscar L. Walter as dismissed the cross claim of New York City Transit Authority against them. The appeal from so much of the order as granted the cross motion of defendants Metropolitan Suburban Bus Authority and Oscar L. Walter to dismiss the cross claim deemed an appeal from a judgment dated March 30, 2006 (CPLR 5501 [c]) dismissing the cross claim and awarding defendants Metropolitan Suburban Bus Authority and Oscar L. Walter $240 in costs and disbursements.
Appeal by John Lecruise from so much of the order denying the motion by New York City Transit Authority for summary judgment dismissing the complaint and from so much of the judgment dismissing the cross claim of New York City Transit Authority is dismissed.
Judgment affirmed without costs.
Order, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
At the outset we note that although John R. Lecruise was named as a defendant, an examination of the record indicates that he was never served and was not a party to the action. The brief of New York City Transit Authority acknowledges that Lecruise was not served and that New York City Transit Authority's motion for summary judgment was made solely on its behalf. However, the brief points out that the appeal was nevertheless taken on behalf of both New York City Transit Authority and John R. Lecruise. Although the court granted judgment for costs and disbursements not only against the New York City Transit Authority but also against John R. Lecruise, the attorney for Lecruise does not raise any issue on this appeal concerning such award.
The appeal by John R. Lecruise from so much of the order as denied the motion by New York City Transit Authority for summary judgment dismissing the complaint, and from so much of the judgment as dismissed the cross claim of New York City Transit Authority against Metropolitan Suburban Bus Authority and Oscar L. Walter, must be dismissed inasmuch as he was not aggrieved thereby (CPLR 5511).
Defendant-appellant New York City Transit Authority moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Despite the conclusion of one of its doctors that plaintiff's injuries were resolved and that plaintiff had no orthopedic disability at the time of the examination, he set forth range of motion findings concerning plaintiff's lumbar spine, but failed to compare those findings with normal range of motion. He stated that "[s]traight leg raising is negative to 75 degrees in both the seated and supine positions." He also stated that "[s]itting Laseague testing is negative to 80 degrees." The foregoing findings failed to establish movant's prima facie entitlement to judgment ( see DeLuca v Miceli , 37 AD3d 643 ). Since movant failed to shift the burden, it is unnecessary to consider whether plaintiff's opposition papers were sufficient to raise a triable issue of fact ( see Yashayev v Rodriguez , 28 AD3d 651 ; Douso v Dandia , 12 Misc 3d 144 [A], 2006 NY Slip Op 51429[U] [App Term, 2d 11th Jud Dists]).
In a previous action involving the same defendants as in the case at bar but commenced by another passenger who was injured in the same accident, the Supreme Court found that neither the New York City Transit Authority nor any other party established any negligence on the part of Metropolitan Suburban Bus Authority and Oscar L. Walter, and thus all claims against them were dismissed. "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim" ( Koch v Consolidated Edison Co. of N.Y., 62 NY2d 548, 554 n 2 [1984]). Defendant New York City Transit Authority is therefore bound by the determination in the prior action and cannot seek to relitigate the liability of Metropolitan Suburban Bus Authority and Oscar L. Walter. The granting of summary judgment, which in essence dismissed the cross claim of New York City Transit Authority, must therefore be sustained.
We further note that the lower court failed to dispose of that part of the cross motion by defendants Metropolitan Suburban Bus Authority and Oscar L. Walter seeking dismissal of the complaint as to them.
Pesce, P.J., Golia and Rios, JJ., concur.