Abdelhak Bouri, respondent, v. Travis Jackson, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Abdelhak Bouri, respondent, v. Travis Jackson, appellant.

2016–08325 2016–08327 2016–08759 (Index No. 507882/13)

Decided: November 27, 2019

REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON, JJ. Picciano & Scahill, P.C., Bethpage, N.Y. (Andrea E. Ferrucci of counsel), for appellant. Jaroslawicz & Jaros PLLC, New York, N.Y. (David Tolchin of counsel), for respondent.

Submitted—June 13, 2019

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Kings County (Kathy J. King, J.), dated June 8, 2016, (2) an order of the same court dated July 20, 2016, and (3) an order of the same court dated August 3, 2016.  The order dated June 8, 2016, insofar as appealed from, conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer unless the defendant appeared for his deposition on July 8, 2016.  The order dated July 20, 2016, granted that branch of the plaintiff's motion which was to strike the defendant's answer.  The order dated August 3, 2016, denied, as academic, the defendant's 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ORDERED that the appeal from the order dated June 8, 2016, is dismissed, as the portion of the order appealed from was superseded by the order dated July 20, 2016;  and it is further,

ORDERED that the order dated July 20, 2016, is affirmed;  and it is further,

ORDERED that the order dated August 3, 2016, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

For the reasons discussed in our decision and order on a related appeal (see Bouri v. Jackson, _ AD3d _ [Appellate Division Docket No. 2017–07680;  decided herewith] ), the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer and denied, as academic, the defendant's 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 accident.

The contention raised at Point II of the plaintiff's brief is not properly before this Court (cf.  Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546).

RIVERA, J.P., AUSTIN, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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