Mann v. DeLaCruz

Mann v DeLaCruz 2025 NY Slip Op 31789(U) May 15, 2025 Supreme Court, Kings County Docket Number: Index No. 529920/2022 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 05/16/2025 04:22 PM INDEX NO. 529920/2022 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 05/16/2025

AtanTAS Trial Tertn, Part 75 ofthe Supreme Court of the.State of New York, Kings County, at the Courthouse located at Adams Street; Brooklyn, New York on the 15 th day of May 2025.

PRE S ENT: HON. ANNE J. SWERN, J.S.C. AMANMANN, DECISION & ORDER Index No;: 529920/2022 Plaintif[(s); Calendar No.: 28 --agai1'1st- Motion Seq.: 005 CHRISTOPHER DELACRUZ,5 BORO GREEN SERVICES, LLC, ALAN GOLDMAN, SALEM TRUCK LEASING, INC. and SALEM TRUCKING CO., INC., Defendant(s).

Recitation of thefollowingpapers as required by CPLR 2219(a).• Papers Numbered Notice ofMotfon, Affinnatiort, Affidavits•and Exhibits(NYSCEF 103-105)., .... ,........... ,................................. l, 2 Affirmation and Exhibits in Opposition (NYSCEF 107-114) . ,............ ,............... 3 Reply Affirmation and Exhibits{NYSCEF 115-ll 8) .,........... ;, ........................... .4 Upon the foregoing papers and after drat argument, the decision and order ofthe Court is asfollows: This is an action for personal injuries arising out of an automobile accident on I 0/2/2021 ori North Broadway, at or near its intersection with North Marginal Road, Jericho, New York.

Plaintiff filed the note of issue on 12/10/24. Defendants, DeLaCruz, 5 Boro Green Service:s and Goldman (collectively "5 Boro"), filed a motion to.strike the note of issue on 12/1.3/24 and extend their Jiin:¢ to file a rilotiort for summary judgment returnable in the Central [Dis9overy] Compliance Part;, The branch of the motion seeking to strike the note of issue was denied as plaintiff provided the outstanding discovery. The branch of the motion seeking to

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.648 [2004] was <;lenied:-witb leave toreriew before theIAS Judge.(NYSCEF 101} ·The Salem Truck defendants filed a motion for suritinacy Judgment oh the issue of ''serious- mjirry" under Article Sl of the Insurance Law on 1/31125. (MS#4) . 05 Buro f1.lso filed a motion for summary judgment on this issue on2/2l/25 (M$#5). .However, the notice of motion did not incltide.·a request to extend.their time to move for summary judgment. On.3/3t,2.5,_ plaintiff e-tiled a. stipulation signed by all parties discontinuing tliis.-action :as against the Salem Truck defendants on,y. ·The stipul~tion a.lSc.> withdrew ·sa.Iem 's motion for StUiunaty judgment, (see NYSCEF 100). The stipulation did not discorttinueall defendants' cross-claims.

In opposition to 5 Boro's motion,. plaintiff argues that the motion i"s -uriti111ely ·because. it was filed Belays beyond the 60~.day deadline to d.o:so. Now that Salem'~ motionhas-_been withdrawn, no previously [timeiy] filed motion is pending before this Court. ·Moreover, since Bora reiied on the exhibits annexed to- Saleni;s withdrawn motion, there .iS-IJ.O evidence in-·the record to· ·support: 5 Bora 's motion. Accordingly~ -5- Bora .cannot meet their-prfmafacie. burden for !l.I1 award ofsummary judgment However, if the Court considers this untimely motion, plaintiff has established in opposition to the motion. that she has sustained-a. serious· injury as· defined .by thelnsu:rance Law.

T.lle Court may consider a ctoss~triotion for summary judgment served after the time _fixed by the Court when a.timely motion for summary judgment was· made_.-on nearly identical groun4s (se.e Whitehead v. City 9/New York 79 A.b.3d 858, 86.0. [2d De_pt 2010]); Under such circumstances, "the nearly identical nature of the _grounds may provide the requisite good cause io review Jhe. merits ··of the untimely cr9ss niotio11" (see. Wernickf v. Knipper, ·119 .AD3d 775, 777 [2d Dept. :2014], citing CPLR 3212[a]). The Court 111ay also (letennine .a cross,...motion for

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demonstrated that plaintiff's h.unbar and left knee injuries were resolved, and plaintiff recovered from a right knee arthtoscopy without any limitations. ·Therefore, plaintiff did not sustain either a penn.anentconsequential limitation·ofuse or significant limitations of use of the.affected body parts (id,) .. In opposition to the motion, plaintiffsubmitted a sworn medical report that predated defendants' report by seven (7) months. Therefore, plaintiff failed to raise a triable issue of fact to rebut the objective findings by defendants' doctor (id.). Therefore, defendants' motion for summary judgment is granted.

Before this action was discontinued.against the Salem defendants; they did not oppose 5 Boro's . .

motion for summary judgment.

The Court has· considered the plaintiff's remaining arguments and finds them to be ·without merit.

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Accor(lingly, it is hereby ORDEREDthat the motion for summary judgment by defendants DeLaCniz;.5 Boro Green Services and Goldman is granted and this action, together with all cross:-claims, is dismissed.

This constitutes the decision and Order of the Court.

ENT

Hon. An J. Swem, J~S.C. Dated:.· /15/2025 For Clerks useorily: MG _ __ MD_~ Motion seq.# _ _ __

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