Opinion
2005-755 QC.
Decided May 19, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered January 4, 2005. The order, insofar as appealed from, granted plaintiff's motion seeking, in essence, to vacate the court's order dated April 21, 2004 which had granted the motion by defendants Carmen Rosario and Jose G. Colon for summary judgment on default and, upon consideration of said motion on the merits, denied same.
Appeal, insofar as it purports to be taken by defendant Carmen Rosario, dismissed.
Order, insofar as appealed from by defendant Jose G. Colon, affirmed without costs.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
Plaintiff instituted this personal injury action for damages sustained in an automobile accident. At the time of the accident, plaintiff was a passenger in a vehicle driven by defendant Londono and owned by defendant Ospona. The other vehicle was driven by defendant Colon and owned by defendant Rosario. Due to the death of defendant Rosario, the court, by order entered October 13, 1999 (Ferne J. Goldstein, J.), struck the case from the calendar pursuant to CPLR 1015 (a). Subsequent thereto, in an order entered May 21, 2002, the court (Bernice Daun Siegal, J.) granted plaintiff's motion "to the extent that plaintiff is given leave to discontinue the action as against defendant Rosario." Plaintiff's action was subsequently continued against all parties, including the deceased. In an order entered April 21, 2004, the court (Charles J. Mackey, J.) granted a motion by defendants Rosario and Colon for summary judgment dismissing the complaint as against them on default based on the evidence and affirmed medical reports establishing a prima facie case that plaintiff did not sustain a serious injury. In August 2004, plaintiff moved, in essence, to vacate the court's order of April 21, 2004. Defendants Ospona and Londono cross-moved for summary judgment dismissing the complaint as against them on the ground that plaintiff did not suffer a serious injury. By order entered January 4, 2005, the court (Diccia T. Pineda-Kirwin, J.) granted plaintiff's motion by vacating the April 21, 2004 order and, upon such vacatur, denied defendants-appellants Rosario and Colon's motion for summary judgment, and denied defendants Ospona and Londono's cross motion for summary judgment.
It is uncontroverted that defendant Rosario died prior to the time that the motion for summary judgment, purportedly on her behalf, was made. There has been no discontinuance as to her or substitution by a representative of her estate. Accordingly, the notice of appeal, insofar as it purports to be by her, is void ( Chimenti v. Hertz Corp., 25 AD2d 562).
With respect to the motion relative to the remaining appellant, Colon, we are in agreement with the findings of the court below that plaintiff demonstrated both a reasonable excuse for her default and a meritorious cause of action ( see CPLR 2221 [a]; 5015 [a] [1]; Serio v. United States Fire Ins. Co., 11 AD3d 670; Statewide Ins. Co. v. Bradham, 301 AD2d 606). The affirmed medical reports submitted on behalf of defendant Colon made out a prima facie case that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and therefore shifted the burden to plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955). Plaintiff successfully met her burden by presenting evidence that she sustained a serious injury. The affidavits of the treating chiropractor presented a qualitative assessment of plaintiff's condition which had an objective basis and compared plaintiff's limitation of motion of her lumbar and cervical spines to normal function ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350-351; Pesce v. Tillotson, 7 AD3d 597). We note that the approximate five-year cessation of treatment was sufficiently explained by plaintiff ( see Pommels v. Perez, 4 NY3d 566; Kovac v. Giraldo, 10 Misc 3d 128 [A], 2005 NY Slip Op 51907[U] [App Term, 2d 11th Jud Dists]).
In view of the foregoing, the appeal, insofar as it purports to be by defendant Rosario is dismissed and the order insofar as it affects defendant Colon is affirmed.
Golia, J.P., Rios and Belen, JJ., concur.