Opinion
2005-221 Q C.
Decided November 21, 2005.
Appeal from an order of the Civil Court of the City of New York, Queens County (Denis J. Butler, J.), entered on October 26, 2004, deemed an appeal from the judgment of the same court entered pursuant thereto on November 12, 2004 (see Neuman v. Otto, 114 AD2d 791). The appeal from the judgment brings up for review the order entered on October 26, 2004 which granted Renata Kovac's motion for summary judgment against Joseph Kovac and defendants' cross motion for summary judgment against Renata Kovac and Joseph Kovac.
Judgment unanimously reversed without costs, order entered on October 26, 2004 vacated and plaintiff Renata Kovac's motion and defendants' cross motion for summary judgment denied.
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
Appellants have neglected to appeal from the judgment entered November 12, 2004 which was subsequent to the order granting summary judgment. The customary rule has been that an appeal taken from an order which is followed by the entry of judgment in the same action must fall and review may only be had upon an appeal from the judgment. Here, however, the judgment ministerially implements the order granting summary judgment. Thus, the appeal from the order should be deemed an appeal from the subsequent judgment in which the order was subsumed, and the appeal should be considered on the merits ( Neuman v. Otto, 114 AD2d 791; Contemp. Med. Diag. Treatment, P.C. v. Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d 11th Jud Dists]).
The complaint stated that on October 19, 2001, plaintiff Joseph Kovac was a passenger in a vehicle driven by his wife, Renata Kovac, which collided with defendants' vehicle. Defendants interposed an answer containing denials, affirmative defenses and a counterclaim for total or partial indemnification from Renata Kovac.
Renata Kovac subsequently moved for summary judgment as against Joseph Kovac alleging that he did not sustain a serious injury, thereby relieving her of any liability with regard to the counterclaim for indemnification.
The medical evidence submitted in support of the motion by the attorney representing Renata Kovac as to the counterclaim made out a prima facie case that plaintiff Joseph Kovac did not sustain serious injuries within the meaning of Insurance Law § 5102 (d). The cross motion for summary judgment by defendants against both plaintiffs made out a prime facie case that neither defendant sustained serious injuries. One of movants' doctors reviewed plaintiff Joseph Kovac's MRI and found that the disc bulge was degenerative in nature and not caused by the accident. Movants' doctors listed the tests they conducted and stated that plaintiffs had recovered from their injuries. The burden, therefore, shifted to the plaintiffs to raise a triable issue of fact that they each sustained a serious injury ( Gaddy v. Eyler, 79 NY2d 955).
The plaintiffs' opposition papers presented evidence that they each sustained a serious injury. Plaintiffs' physician presented qualitative assessments of plaintiffs' condition which had an objective basis and compared plaintiffs' limitations of motion of their lumboscral and cervical spines to normal function ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350; Pesce v. Tillotson, 7 AD3d 597).
Finally, it is noted that the two-year cessation of treatment was explained by each plaintiff who stated in their examinations before trial that they stopped treatment because their benefits ended. This was a sufficient explanation to raise an issue of fact and survive summary judgment ( Pommells v. Perez, 4 NY3d 566).