Opinion
1217
May 30, 2002.
Order, Supreme Court, New York County (Milton Tingling, J.), entered July 17, 2001, which, to the extent appealed from, denied plaintiff's motion for partial summary judgment on the issue of liability, to treat defendants' answer as a nullity and for sanctions and preclusion, unanimously affirmed, without costs.
LOUIS A. MANGONE, for Plaintiff-appellant.
MEREDITH DRUCKER, for Defendants-respondents.
Tom, J.P., Mazzarelli, Andrias, Sullivan, Friedman, JJ.
The motion court properly denied plaintiff's motion for partial summary judgment on the issue of liability since there was a triable issue as to whether plaintiff, who had a pre-existing cervical spine condition and who allegedly suffered a herniated disc when he was struck by a vehicle owned by defendant Moran and driven by defendant Vargas, sustained "serious injury" within the meaning of Insurance Law § 5102(d) by reason of the complained of accident (see, Noble v. Ackerman, 252 A.D.2d 392, 394).
Plaintiff's challenges to the answer are deemed waived since they were not timely raised, plaintiff having waited for approximately one year to request the relief (see, Air New York, Inc. v. Alphonse Hotel Corp., 86 A.D.2d 932).
Also properly denied was plaintiff's request for sanctions and preclusion inasmuch as defendants submitted responses to plaintiff's discovery requests and defendants' failure to appear for depositions was not due to willful and contumacious conduct.
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.