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Modesto Besinan and Elisa Besinan v. Oswaldo G. Fajardo and Eduardo O. Fajardo

SUPREME COURT OF THE STATE OF NEW YORK


February 16, 2011

MODESTO BESINAN AND ELISA BESINAN,
APPELLANTS,
v.
OSWALDO G. FAJARDO AND EDUARDO O. FAJARDO,
RESPONDENTS.

Appeals from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered May 29, 2009, and from a judgment of the same court entered July 24, 2009.

Besinan v Fajardo

Decided on February 16, 2011

Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2011

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The order granted defendants' motion for summary judgment dismissing the complaint, and granted the branch of a separate motion by Modesto Besinan, as defendant on a counterclaim, seeking to dismiss the complaint insofar as asserted by plaintiff Elisa Besinan. The judgment, entered pursuant to the order, dismissed the complaint.

ORDERED that the appeal from the order, and the appeal from the judgment insofar as taken by Modesto Besinan, are dismissed; and it is further,

ORDERED that the judgment, insofar as reviewed, is affirmed, without costs.

Plaintiffs commenced this action to recover for personal injuries allegedly sustained in a collision between a vehicle owned and operated by plaintiff Modesto Besinan and a vehicle owned by defendant Oswaldo G. Fajardo and operated by defendant Eduardo O. Fajardo. The complaint stated, as its first cause of action, that plaintiff Modesto Besinan had suffered a serious injury as a result of the collision, and, as its second cause of action, that plaintiff Elisa Besinan, a passenger in the vehicle driven by Modesto Besinan, also had suffered a serious injury as a result of the collision. Defendants interposed an answer in which, among other things, they denied liability and counterclaimed against Modesto Besinan, asserting that, if they are found to be liable to plaintiff Elisa Besinan, plaintiff Modesto Besinan is liable to them. Thereafter, defendants moved for summary judgment dismissing the complaint on the ground that plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Opposition was submitted only as to that part of the motion which sought dismissal of Elisa Besinan's cause of action. Counsel for Modesto Besinan, as defendant on the counterclaim, moved separately for, among other things, summary judgment dismissing the complaint insofar as asserted by Elisa Besinan (see Weinstein-Korn-Miller, NY Civ Prac ¶ 1008.03). The Civil Court granted defendants' motion for summary judgment dismissing the complaint as well as the branch of Modesto Besinan's separate motion seeking summary judgment dismissing the complaint insofar as asserted by Elisa Besinan. Plaintiffs' appeal from the order ensued. A judgment was subsequently entered pursuant to the order, dismissing the complaint, from which judgment plaintiffs also appealed. The only challenge on appeal is to the dismissal of plaintiff Elisa Besinan's cause of action.

Defendants and Modesto Besinan, as defendant on the counterclaim, met their prima facie burden of showing that plaintiff Elisa Besinan did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). At her deposition, Elisa Besinan acknowledged that she missed less than 90 days of work as a result of the accident (see McIntosh v O'Brien, 69 AD3d 585 [2010]; Richards v Tyson, 64 AD3d 760 [2009]; Shamsoodeen v Kibong, 41 AD3d 577 [2007]). Additionally, the affirmed reports of defendants' doctors concluded, based upon objective range of motion tests which compared their findings to normal ranges of motion, that Elisa Besinan had full range of motion in her cervical and lumbar spine, right shoulder and right wrist (see Layne v Drouillard, 65 AD3d 1197 [2009]).

In opposition to the applications for summary judgment, Elisa Besinan argued that the unsworn and unaffirmed records of other medical providers were admissible as the business records of her chiropractor. However, contrary to Elisa Besinan's assertion, it is well settled that unsworn submissions are without probative value and insufficient to raise a triable issue of fact (see Varveris v Franco, 71 AD3d 1128 [2010]; Giannini v Cruz, 67 AD3d 638 [2009]; Maffei v Santiago, 63 AD3d 1011 [2009]; Casas v Montero, 48 AD3d 728 [2008]; Nociforo v Penna, 42 AD3d 514 [2007]; Elder v Stokes, 35 AD3d 799 [2006]). Accordingly, Elisa Besinan failed to present any range of motion findings which were contemporaneous with the subject accident (see Simanovskiy v Barbaro, 72 AD3d 930 [2010]; Bleszcz v Hiscock, 69 AD3d 890 [2010]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]). Her radiologists did not express opinions on the cause of findings made in their respective reports (see Knox v Lennihan, 65 AD3d 615 [2009). Elisa Besinan also failed to proffer competent medical evidence that she sustained a medically determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days immediately following the subject accident (see LaMarre v Michelle Taxi, Inc., 60 AD3d 911 [2009]; Penaloza v Chavez, 48 AD3d 654 [2008]). Consequently, the evidence submitted by Elisa Besinan failed to raise a triable issue of fact (see CPLR 3212 [b]), and summary judgment was properly awarded dismissing her cause of action.

The appeal from the order entered May 29, 2009 is dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241 [1976]). The appeal from the judgment insofar as taken by Modesto Besinan as plaintiff is dismissed as said plaintiff is not aggrieved by the dismissal of his cause of action since he did not oppose defendants' motion for summary judgment, nor is he aggrieved by the dismissal of plaintiff Elisa Besinan's cause of action (see CPLR 5511). Indeed, as defendant on the counterclaim, Modesto Besinan separately moved to dismiss Elisa Besinan's cause of action, which motion was granted.

Pesce, P.J., Weston and Golia, JJ., concur. Decision Date: February 16, 2011

20110216

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