Cartagena v. Lee
| Decision Date | 09 February 2022 |
| Docket Number | 2019–09459,Index No. 718955/18 |
| Citation | 202 A.D.3d 746,158 N.Y.S.3d 855 (Mem) |
| Parties | Alexander CARTAGENA, appellant, v. Stephen K. LEE, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
202 A.D.3d 746
158 N.Y.S.3d 855 (Mem)
Alexander CARTAGENA, appellant,
v.
Stephen K. LEE, et al., respondents.
2019–09459
Index No. 718955/18
Supreme Court, Appellate Division, Second Department, New York.
Argued—November 16, 2021
February 9, 2022
Krentsel & Guzman, LLP, New York, NY (Marcia K. Raicus of counsel), for appellant.
James F. Butler (Rivkin Radler, LLP, Uniondale, NY [Cheryl F. Korman ], of counsel), for respondents.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), dated July 29, 2019. The order granted the defendants'
motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
On April 6, 2016, a vehicle driven by the defendant Stephen K. Lee and owned by the defendant Chak L. Lee struck a vehicle that was being driven by the plaintiff.
In or about June 2016, the plaintiff commenced an action in Supreme Court against the defendants to recover damages for personal injuries he allegedly sustained in the accident (hereinafter the prior action). In the prior action, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability. The prior action was then transferred to Civil Court, and jury selection began for a trial on the issue of damages. Prior to opening statements, the Civil Court granted the defendants' application to preclude the plaintiff from presenting evidence of injuries that he allegedly sustained to the thoracic region of his spine as a result of the subject accident. Thereafter, the plaintiff refused to proceed with his case at trial, and the defendants made an application pursuant to 22 NYCRR 202.27 to dismiss the complaint. The Civil Court treated the defendants' application as, in effect, seeking a directed verdict pursuant to CPLR 4401, granted the application, and directed dismissal of the complaint in the prior action. The plaintiff did not appeal...
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