| Fung v Uddin |
| 2009 NY Slip Op 02560 [60 AD3d 992] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Francis Fung, Respondent, v Mohammed Nasir Uddin etal., Appellants, et al., Defendants. |
—[*1] Kenneth M. Mollins, Melville, N.Y. (Peter Citrin of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Mohammed NasirUddin and Ainos Taxi, Inc., appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Schmidt, J.), dated June 30, 2008, as granted the plaintiff'smotion for leave to reargue his opposition to their motion for summary judgment dismissing thecomplaint insofar as asserted against them on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d), which had beendetermined in an order dated December 11, 2007, and upon reargument, denied their motion forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order dated June 30, 2008, is modified, on the law, by deleting the provisionthereof which, upon reargument, denied the motion of the defendants Mohammed Nasir Uddinand Ainos Taxi, Inc., for summary judgment dismissing the complaint insofar as asserted againstthem, and substituting therefor a provision, upon reargument, adhering to the originaldetermination in the order dated December 11, 2007, granting their motion for summaryjudgment dismissing the complaint insofar as asserted against them; as so modified, the order isaffirmed insofar as appealed from, with costs to the appellants.
Contrary to the contention of the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc.(hereinafter the appellants), the Supreme Court providently exercised its discretion in grantingreargument (see Luna v Mann, 58 AD3d 699 [2009]; E.W. Howell Co., Inc. v S.A.F.La Sala Corp., 36 AD3d [*2]653, 654 [2007]; Pimentel vMesa, 28 AD3d 629 [2006]). However, upon granting reargument, the Supreme Court erredin failing to adhere to its original determination granting the appellants' motion for summaryjudgment dismissing the complaint insofar as asserted against them.
The appellants met their prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955 [1992]). In opposition to the appellants' showing in this regard, theplaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury to hiscervical or lumbar spine under the categories of Insurance Law § 5102 (d) requiring aplaintiff to establish a "permanent consequential limitation of use of a body organ or member" ora "significant limitation of use of a body function or system." The plaintiff offered no competentmedical evidence to demonstrate the existence of a significant range-of-motion limitation in hiscervical or lumbar spine contemporaneous with the subject accident (see Garcia v Lopez,59 AD3d 593 [2009]; Luizzi-Schwenk v Singh, 58 AD3d 811 [2009]; Leeber vWard, 55 AD3d 563 [2008]). The plaintiff's medical records from St. Vincent's Hospital andApple Chiropractic, P.C., were not competent proof of a contemporaneous injury because theywere neither affirmed nor sworn (see Pompey v Carney, 59 AD3d 416 [2009];Sapienza v Ruggiero, 57 AD3d 643 [2008]; Choi Ping Wong v Innocent, 54AD3d 384, 385 [2008]). Furthermore, the affirmation of the plaintiff's former treating physician,Jeffrey Schwartz, was without probative value because he was no longer licensed to practicemedicine at the time the affirmation was written (see CPLR 2106; Worthy v GoodSamaritan Hosp. Med. Ctr., 50 AD3d 1023, 1024 [2008]; McDermott v New YorkHosp.-Cornell Med. Ctr., 42 AD3d 346 [2007]).
The plaintiff also failed to submit competent medical evidence that the injuries he allegedlysustained in the subject accident rendered him unable to perform substantially all of his usualand customary daily activities for not less than 90 days of the first 180 days subsequent to theaccident (see Garcia v Lopez, 59 AD3d 593 [2009]; Roman v Fast Lane Car Serv.,Inc., 46 AD3d 535, 536 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]). Mastro,J.P., Fisher, Florio and Eng, JJ., concur.