Von Maknassy v. Moran

—Order, Supreme Court, New York County (Milton Tingling, J.), entered July 17, 2001, which, to the extent appealed from, denied plaintiffs motion for partial summary judgment on the issue of liability, to treat defendants’ answer as a nullity and for sanctions and preclusion, unanimously affirmed, without costs. The motion court properly denied plaintiff’s motion for partial summary judgment on the issue of liability since there was a triable issue as to whether plaintiff, who had a preexisting cervical spine condition and who allegedly suffered a herniated disc when he was struck by a vehicle owned by defendant Moran and driven by defendant Vargas, sustained “serious injur/’ within the meaning of Insurance Law § 5102 (d) by reason of the complained of accident (see, Noble v Ackerman, 252 AD2d 392, 394). [307] Plaintiffs challenges to the answer are deemed waived since they were not timely raised, plaintiff having waited for approximately one year to request the relief (see, Air N.Y. v Alphonse Hotel Corp., 86 AD2d 932). Also properly denied was plaintiffs request for sanctions and preclusion inasmuch as defendants submitted responses to plaintiffs discovery requests and defendants’ failure to appear for depositions was not due to willful and contumacious conduct. We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P., Mazzarelli, Andrias, Sullivan and Friedman, JJ.