| Chernysheva v Pinchuck |
| 2008 NY Slip Op 10577 [57 AD3d 936] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Yelena Chernysheva, Appellant, v Lawrence Pinchuck etal., Respondents. |
—[*1] Robin Harris King & Fodera (Mauro Goldberg & Lilling LLP, Great Neck, N.Y. [MatthewW. Naparty and Deborah F. Peters], of counsel), for respondents Lawrence Pinchuck and GlopakIndustries, Inc. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents Sarah (USA) Trading Corp. and Mouhamad Rhabe.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated July25, 2007, as denied her motion for leave to renew her opposition to the motions of the defendantsSarah (USA) Trading Corp. and Mouhamad Rhabe, and the defendants Lawrence Pinchuck andGlopak Industries, Inc., which were for summary judgment dismissing the complaint insofar asasserted against them on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), which had been determined in an order dated March20, 2007.
Ordered that the order dated July 25, 2007 is affirmed insofar as appealed from, with one billof costs to the respondents.
The plaintiff sought leave to renew her opposition to the defendants' prior motions forsummary judgment, which had been granted in an order of the Supreme Court, Kings County,dated March 20, 2007. In opposition to the defendants' respective prima facie showings ofentitlement to judgment as a matter of law, the plaintiff did not raise a triable issue of fact. Insupport of her motion [*2]for leave to renew, the plaintiff'scounsel provided affirmed medical reports evidencing that the plaintiff received epiduralinjections on December 6, 2006, December 20, 2006, and January 3, 2007, due to her allegedlumbar spine injuries. The injections occurred after the deadline had passed for the plaintiff tosubmit opposition to the defendants' respective motions for summary judgment. The plaintiff'scounsel also argued that after opposition was due on the motions, a medical determination wasmade that the plaintiff required surgery to her wrist and/or elbow, and that during an office visitto an orthopedist on January 4, 2007 the plaintiff decided to undergo the surgery on a future date.For the reasons set forth below, the Supreme Court providently exercised its discretion indenying the plaintiff's motion for leave to renew.
A motion for leave to renew "shall be based upon new facts not offered on the prior motionthat would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3];Dinten-Quiros v Brown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744[2007]).
In support of her motion for leave to renew, the plaintiff relied upon evidence that, whilegenerated after the summary judgment motions were fully submitted, contained no "new facts"that would change the prior determination awarding summary judgment to the defendants. In heraffidavit submitted in opposition to the defendants' respective motions for summary judgment,the plaintiff mentioned that she was scheduled for epidural steroid injections. Moreover, contraryto the affirmation of the plaintiff's counsel in support of her motion for leave to renew, theplaintiff's most recent medical records failed to establish that any medical determination had beenmade that the plaintiff required wrist or elbow surgery or that she had decided to undergo suchsurgery. Instead, they indicate that the plaintiff was merely "considering" surgery and that futuresurgical intervention was "possible," neither of which would have changed the priordetermination. Accordingly, the plaintiff's motion for leave to renew was properly denied.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dillon, Carni andLeventhal, JJ., concur.