January 22, 2014
Hassan O.G. Alamin, appellant,
Shake Uddin, et al., respondents. Index No. 38425/02
Hassan O.G. Alamin, Brooklyn, N.Y., appellant pro se.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Kenneth L. London of counsel), for respondents.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated February 13, 2011, as granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, a prior order of the Supreme Court dated April 8, 2010, did not prevent the Supreme Court from granting the defendants' cross motion for summary judgment dismissing the complaint. That prior order did not constitute a determination of the merits of the defendants' cross motion for summary judgment, and the defendants' cross motion remained pending and undecided until the court determined the merits of the cross motion in the order appealed from. Consequently, the relief sought by the defendants was not barred by the principles of collateral estoppel or res judicata (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13-14; Springwell Nav. Corp. v Sanluis Corporation, S.A., 81 A.D.3d 557; see also Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 A.D.3d 1123).
To the extent that the plaintiff seeks review of the merits of the Supreme Court's determination that the defendants were entitled to judgment as a matter of law, the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v Eyler, 79 N.Y.2d 955, 956-957; see also Marin v Ieni, 108 A.D.3d 656; Jilani v Palmer, 83 A.D.3d 786, 787). In opposition to that showing, the plaintiff failed to raise a triable issue of fact (see Kabir v Vanderhost, 105 A.D.3d 811, 812; Williams v Town of Greenburgh, 101 A.D.3d 990; Morris v Edmond, 48 A.D.3d 432, 433; see also Garcia v Lopez, 59 A.D.3d 593, 594).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court correctly granted the defendants' cross motion for summary judgment dismissing the complaint.
MASTRO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.