Burnett v Yeya Limousine, Inc. (2008 NY Slip Op 51305(U))

Burnett v Yeya Limousine, Inc.

2008 NY Slip Op 51305(U) [20 Misc 3d 128(A)]

Decided on June 30, 2008

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Darryl Burnett, Plaintiff-Respondent,

against

Yeya Limousine, Inc. and Aled Ioday, Defendants-Respondents, -and- Ibrahima Diallo, Defendant-Appellant.

Defendant Diallo appeals from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered October 3, 2007, which denied his motion for summary judgment dismissing the complaint.

Order (Julia I. Rodriguez, J.), entered October 3, 2007, modified to dismiss plaintiff's claim for non-permanent injury (90/180 claim), and as modified, affirmed, with $10 costs.

In opposition to defendants' prima facie showing of entitlement to judgment as a matter of law on the threshold question of serious injury (see Insurance Law §5102[d]), plaintiff raised a triable issue on his claim of permanent injury by submitting, inter alia, the affirmations of treating physicians who attested to quantified restrictions of motion, the presence of muscle spasms and loss of sensation in plaintiff's lower extremities persisting several years after the accident. These findings correlated with similar findings of limitation in the near aftermath of the accident, and were consistent with the results of MRI and nerve conduction testing. The doctors opined that the subject accident caused significant and permanent injuries to plaintiff's spine (see Britt v Goodspeed, 41 AD3d 179 [2007]).

Defendant's claim that plaintiff had a pre-existing medical condition that accounts for some or all of plaintiff's injuries was not raised by defendant before Civil Court (see Onishi v N & B Taxi, Inc., AD3d , 2008 NY Slip Op 04782 [2008]). We are foreclosed from [*2]searching the record and evaluating that claim since it was not addressed in either defendant's motion or the cross motion of the nonappealing defendants (see Perez v Hilarion, 36 AD3d 536 [2007]). We note, however, that the record does not support plaintiff's claim that he sustained a non-permanent injury that prevented him from performing substantially all of his usual and customary daily activities for 90 of the 180 days following the accident (see Gorden v Tibulcio, AD3d , 2008 NY Slip Op 03382 [2008]; Uddin v Cooper, 32 AD3d 270 [2006]).

This Constitutes the Decision and Order of the Court.
Decision Date: June 30, 2008