Angeles v. American United Transportation, Inc.

Appellate Division of the Supreme Court of the State of New York

Oct 31, 2013

Versions:110 A.D.3d 639

973 N.Y.S.2d 644

p class=“midpage-citation“>639

action unless the complaint “set[s] forth with particularity,” the shareholder’s efforts to secure the initiation of that action by the board of directors, or sets forth sufficient and particular reasons for not making such efforts (see Business Corporation Law § 626 [c]). A pre-suit demand is similarly required in a derivative action involving a limited liability company (see Segal v. Cooper, 49 AD3d 467, 468 [1st Dept 2008]). Although plaintiff alleged that individual defendant Born controlled certain entities that owned and operated another hotel to which BDC 56 funds were allegedly diverted, and through these entities engaged in the alleged misconduct at issue, plaintiff failed to specify how the other individual defendants were involved. Thus, plaintiff failed to allege that the majority of the individuals controlling the managing member, defendant West 56th Hotel LLC, were interested in the challenged transaction.

We further observe that in addition to lacking standing to bring this derivative action, plaintiffs claims, including, inter alia, for breach of contract, breach of fiduciary duty and conversion, have been insufficiently pled. Concur—Mazzarelli, J.P., Renwick, DeGrasse, Feinman and Gische, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 17, 2013, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury under the “permanent consequential” and “significant” limitation of use categories of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Defendants made a prima facie showing of entitlement to summary judgment as to plaintiff’s claims of permanent consequential, or significant, limitation of use of his cervical spine, lumbar spine and shoulders by submitting expert medical reports of a neurologist and orthopedist who found full range of motion in those parts upon examination, and of a radiologist who found that the MRIs of plaintiffs cervical and lumbar spine taken shortly after the accident showed no evidence of disc bulges or herniations (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 353 [2002]; Santos v Perez, 107 AD3d 572, 573 [1st Dept 2013]; Robinson v Joseph, 99 AD3d 568 [1st Dept 2012]). To the extent the radiologist opined, without any elaboration, that any discogenic changes were either age-related or a co-morbidity of “increased body habitus/obesity,’’ the opinion is insufficient, in light of the fact that plaintiff was 29 years old at the time of the accident, to shift the burden on the issue of causation of the spinal injuries (see De La Cruz v Hernandez, 84 AD3d 652 [1st Dept 2011]).

In opposition, plaintiff raised a triable issue of fact with respect to whether he sustained serious injuries in his cervical and lumbar spine by submitting affirmed reports of a radiologist and physician who found bulging and/or herniated discs shown in the MRIs taken shortly after the accident, and continuing range-of-motion deficits of those body parts (see Duran v Kabir, 93 AD3d 566 [1st Dept 2012]; Seck v Balla, 92 AD3d 543 [1st Dept 2012]). Although the report of the osteopath who treated plaintiff after the accident is unaffirmed, plaintiff is not required to present contemporaneous range of motion findings in order to establish serious injury, and his testimony, together with the osteopath’s report and the MRIs taken shortly after the accident, was sufficient to demonstrate a causal link between his claimed spinal injuries and the accident (see Perl v Meher, 18 NY3d 208 [2011]; Biascochea v Boves, 93 AD3d 548, 549 [1st Dept 2012]). Further, his expert treating physician opined, after examination, that his injuries were causally related to the accident (see June v Akhtar, 62 AD3d 427 [1st Dept 2009]).

Accordingly, we need not reach the other claimed injuries. If the trier of fact determines that plaintiff sustained a serious injury, it may award damages for all injuries causally related to the accident, even those that do not meet the threshold (Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]; Singer v Gae Limo Corp., 91 AD3d 526 [1st Dept 2012]). Concur—Mazzarelli, J.P., Renwick, DeGrasse, Feinman and Gische, JJ.

MAZZARELLI, J.P., RENWICK, DEGRASSE, FEINMAN AND GISCHE, JJ.

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