| Gentilella v Board of Educ. of Wantagh Union Free SchoolDist. |
| 2009 NY Slip Op 01613 [60 AD3d 629] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 18—Adam Gentilella, Appellant, v Board ofEducation of Wantagh Union Free School District et al.,Respondents. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino and Kathleen D. Foley of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Nassau County (Winslow, J.), dated August 10, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2), aslimited by his brief, from so much of an order of the same court dated February 28, 2008, asdenied that branch of his motion which was for leave to renew his opposition to the defendants'prior motion and, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated August 10, 2007, is dismissed, as that order wassuperseded by that portion of the order dated February 28, 2008, made upon reargument; and it isfurther,
Ordered that the order dated February 28, 2008, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the defendants.
This action arises from a two-car motor vehicle accident which occurred on September 23,2005, on the Long Island Expressway in Queens, in which the plaintiff allegedly sustainedinjuries to his cervical and lumbar spines. It is undisputed that the plaintiff had previouslyinjured those parts of his body in a motor vehicle accident on November 25, 2001. After theplaintiff commenced the present action, the defendants [*2]moved for summary judgment dismissing the complaint on theground that the plaintiff's alleged injuries predated the subject motor vehicle accident. Themedical evidence which the defendants submitted in support of the motion established, primafacie, that any injuries that the plaintiff sustained in the accident of September 23, 2005, werenot serious within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent ACar Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).Notably, the affirmed reports prepared by Dr. Tantleff, the defendants' expert radiologist, whichwere submitted in support of the motion, found that magnetic resonance imaging (hereinafterMRI) studies of the plaintiff's cervical and lumbar spine shortly after the 2001 accident and yearsprior to the subject one, revealed "longstanding chronic degenerative discogenic disease" in bothregions of the plaintiff's spine. Moreover, upon reviewing MRI studies of both the cervical andlumbar spine taken shortly after the present accident and comparing them with the earlier set ofMRI studies taken prior to the present accident, Dr. Tantleff found "no definable intervalchange." The admissible medical evidence which the plaintiff submitted in opposition to themotion failed to raise a triable issue of fact (see CPLR 3212). While Dr. Hausknechtacknowledged the existence of the earlier accident and the plaintiff's prior chiropractic treatment,he never indicated that he reviewed any of plaintiff's medical records from the earlier accidentand apparently merely took the plaintiff's word for the fact that he had recovered from anyinjuries sustained therein prior to the occurrence of the subject accident (see Penaloza v Chavez, 48 AD3d654 [2008]). Therefore, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint and, upon reargument, properly adhered to thatdetermination (see Haggerty v Quast,48 AD3d 629 [2008]).
Since the new information submitted by the plaintiff in support of that branch of his motionwhich was for leave to renew provided no basis for changing the court's original determination,the court properly denied that branch of the motion (see Worrell v Parkway Estates, LLC, 43 AD3d 436 [2007]).Skelos, J.P., Dillon, Angiolillo and Eng, JJ., concur.