Opinion
2003-02270
Submitted October 8, 2003.
November 10, 2003.
In related actions to recover damages for personal injuries, etc., the defendants in Action No. 2, Chase Manhattan Automotive Finance Corporation, Joanna Delecce, Tylieka Danar, and First Union Auto Finance, Inc., separately appeal from an order of the Supreme Court, Nassau County (Joseph, J.), entered January 31, 2003, which denied the respective motions of the defendant Joanna Delecce, and the defendants Tylieka Danar and Chase Manhattan Automotive Finance Corporation, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Robert Glanzrock did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Montfort, Healy, McGuire Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for appellant Chase Manhattan Automotive Finance Corporation.
Russo, Apoznanski Hellreich, Westbury, N.Y. (Susan J. Mitola of counsel), for appellant Joanna Delecce.
Robert P. Tusa (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants Tylieka Danar and First Union Auto Finance, Inc.
Bauman Kunkis, P.C., New York, N.Y. (Steven C. Pepperman of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the appeal by the defendant First Union Auto Finance, Inc., is dismissed on the ground that it is not aggrieved by the order appealed from ( see CPLR 5511; QDR Consultants Dev. Corp. v. Colonia Ins. Co., 251 A.D.2d 641); and it is further,
ORDERED that the order is reversed on the appeals by Chase Manhattan Automotive Finance Corporation, Joanna Delecce, and Tylieka Danar, on the law, the motions are granted, upon searching the record, summary judgment is granted to the defendant First Union Auto Finance, Inc., and the complaint in Action No. 2 is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the defendants Chase Manhattan Automotive Finance Corporation, Joanna Delecce, and Tylieka Danar.
Joanna Delecce, Tylieka Danar, and Chase Manhattan Automotive Finance Corporation, defendants in Action No. 2, made a prima facie showing that the plaintiff Robert M. Glanzrock did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955; McCauley v. Ross, 298 A.D.2d 506). In opposition, the plaintiffs in that action failed to submit any medical proof in admissible form that was contemporaneous with the subject accident showing any initial range of motion restrictions in his spine ( see Ifrach v. Neiman, 306 A.D.2d 380; Pajda v. Pedone, 303 A.D.2d 729; Lanza v. Carlick, 279 A.D.2d 613, 614). Furthermore, the plaintiffs failed to submit any probative medical evidence regarding the nature and extent of any treatment ( see Sambajon v. Everett, 301 A.D.2d 510; Crespo v. Kramer, 295 A.D.2d 467; Yaraghi v. Zeller, 286 A.D.2d 765).
Although the defendant First Union Auto Finance, Inc., did not move for summary judgment dismissing the complaint insofar as asserted against it in Action No. 2, this court has the authority pursuant to CPLR 3212(b) to search the record and award summary judgment to a nonmoving party ( see Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-112; QDR Consultants Dev. Corp. v. Colonia Ins. Co., supra) with respect to an issue that was the subject of the motions before the Supreme Court ( see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430).
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.