| Caraballo v Kim |
| 2009 NY Slip Op 05279 [63 AD3d 976] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Rosa J. Caraballo et al., Appellants, v Moonho Kim et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Queens County (Weiss, J.), entered May 14, 2008, which grantedthe defendants' motion for summary judgment dismissing the complaint on the ground that theplaintiff Rosa J. Caraballo did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and (2) an order of the same court entered August 6, 2008, which denied theirmotion for leave to renew their opposition to the defendants' prior motion for summary judgmentdismissing the complaint.
Ordered that the orders are affirmed, with one bill of costs.
The Supreme Court correctly determined that the defendants met their prima facie burden ofshowing that the plaintiff Rosa J. Caraballo (hereinafter the injured 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, 956-957 [1992]; see also Meyers v Bobower Yeshiva BneiZion, 20 AD3d 456 [2005]). In opposition, the plaintiffs failed to raise a triable issue of fact.
The medical report of the injured plaintiff's treating chiropractor, Dr. Alan C. Berger, datedMay 8, 2006, did not constitute evidence competent to oppose the defendants' motion because itwas unaffirmed (see Grasso v Angerami, 79 NY2d 813 [1991]; Niles v Lam PakieHo, 61 AD3d 657 [2009]; Uribe-Zapata v Capallan, 54 AD3d 936 [2008];Patterson v NY Alarm Response Corp., 45 AD3d 656 [2007]; Verette v Zia, 44AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; Pagano v Kingsbury,182 AD2d 268 [1992]).
In any event, the affidavit of Dr. Berger failed to raise a triable issue of fact as to whether theinjured plaintiff sustained a serious injury to her knees or spine as a result of the subjectaccident. While Dr. Berger set forth findings based on a recent examination of the injuredplaintiff that revealed significant limitations in the ranges of motion of the cervical and lumbarregions of her [*2]spine, neither he nor the plaintiffs profferedcompetent medical evidence that revealed the existence of significant limitations in the cervicalor lumbar regions of the injured plaintiff's spine that were contemporaneous with the subjectaccident (see DiLernia v Khan, 62 AD3d 644 [2009]; Leeber v Ward, 55 AD3d563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498 [2008]; D'Onofrio v Floton,Inc., 45 AD3d 525 [2007]). It appears from Dr. Berger's affidavit that he did not evenexamine the injured plaintiff's knees.
The affirmation of Dr. Stuart I. Springer, the injured plaintiff's treating physician, also failedto raise a triable issue of fact. Dr. Springer examined the injured plaintiff's knees in Septemberand November 2005, and concluded that the injured plaintiff had "good" range of motion inSeptember 2005, but made no findings concerning the injured plaintiff's range of motion inNovember 2005. Thereafter, on April 3, 2008, Dr. Springer noted an insignificant limitation inthe range of motion of the injured plaintiff's knees. Even if Dr. Springer had found thelimitations to be significant under the no-fault statute, neither Dr. Springer nor the plaintiffsproffered any competent medical evidence that revealed the existence of any significantlimitations in the injured plaintiff's knees that were contemporaneous with the subject accident.In fact, the only range-of-motion findings made contemporaneous with the subject accident byDr. Springer showed that range of motion of the injured plaintiff's knees was "good."
The affirmed magnetic resonance imaging reports of Dr. Mark Shapiro and Dr. MarcLiebeskind merely revealed the existence of disc bulges at L3-4 and L4-5, a disc herniation atL5-S1, possible tears in the posterior horns of the medial menisci of the right and left knees, anda possible tear (rupture) of the anterior cruciate ligament in the left knee. This Court has heldthat a herniated or bulging disc, or even a tear in a tendon, is not evidence of a serious injury inthe absence of objective evidence of the extent of the alleged physical limitations resulting fromthe injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008 [2009];Washington v Mendoza, 57 AD3d 972 [2008]; Cornelius v Cintas Corp., 50AD3d 1085, 1087 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Tobias vChupenko, 41 AD3d 583 [2007]). A tendon is defined as "[t]he cord of tough connectivetissue which forms the end of a muscle and which connects the muscle to the bone" (5-T-TGAttorneys' Dictionary of Medicine, at 974 [2005 ed]). Tendons "are bands of fibrous connectivetissue" (5-15A Attorneys' Textbook of Medicine, at 15A.10 [3d ed]). A ligament is defined as"[a] band of tough but flexible tissue which serves to connect bones (as in the formation of ajoint), to hold organs in place, etc." (3-L Attorneys' Dictionary of Medicine, at 2302 [2005 ed]).Ligaments, like tendons, are "bands of tough, fibrous connective tissue" (4-13 Attorneys'Textbook of Medicine, at 13.10 [3d ed]). Thus, injuries involving tendons and ligaments must betreated similarly under Insurance Law § 5102 (d). Evidence of the extent and duration ofany alleged limitation arising from injury to the plaintiff's discs or ligaments was clearly lackinghere. The deposition testimony of the injured plaintiff was insufficient to supply such evidence(see Washington v Mendoza, 57 AD3d 972 [2008]).
The plaintiffs failed to submit competent medical evidence that the injuries that the injuredplaintiff allegedly sustained in the subject accident rendered her unable to perform substantiallyall of her usual and customary daily activities for not less than 90 days of the first 180 dayssubsequent to the subject accident (see Washington v Mendoza, 57 AD3d 972 [2008];Rabolt v Park, 50 AD3d 995 [2008]; Roman v Fast Lane Car Serv., Inc., 46AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).
The Supreme Court providently exercised its discretion in denying the plaintiffs' motion forleave to renew their opposition to the defendants' motion for summary judgment (seeRamirez v Khan, 60 AD3d 748 [2009]; Renna v Gullo, 19 AD3d 472 [2005]). Amotion for leave to renew "shall be based upon new facts not offered on the prior motion thatwould 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]; seeRamirez v Khan, 60 AD3d 748 [2009]; Dinten-Quiros v Brown, 49 AD3d 588[2008]; Madison v Tahir, 45 AD3d 744 [2007]). While it may be within the court'sdiscretion to grant leave to renew upon facts known to the moving party at the time of theoriginal motion (see Ramirez v Khan, 60 AD3d 748 [2009]; J.D. Structures vWaldbaum, 282 AD2d 434 [2001]; Cronwall Equities v International Links Dev.Corp., 255 AD2d 354 [1998]), a motion for leave to renew " 'is not a second chance freelygiven to parties who have not exercised due diligence in making their first factual presentation' "(Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d328, 329 [1996]; see Ramirez v Khan, 60 AD3d 748 [2009]; O'Dell v Caswell,12 AD3d 492 [2004]; Hart v City of New York, 5 [*3]AD3d 438 [2004]; Carota v Wu, 284 AD2d 614 [2001]). Inthis case, the plaintiffs failed to provide reasonable justification for the failure to include thefindings in the supplemental affidavit of Dr. Berger on the original motion (see Ramirez vKhan, 60 AD3d 748 [2009]; Renna v Gullo, 19 AD3d 472 [2005]). Spolzino, J.P.,Santucci, Angiolillo, Leventhal and Lott, JJ., concur.