| Barnett v Smith |
| 2009 NY Slip Op 05939 [64 AD3d 669] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Barbara Barnett, Respondent, v Kathleen Smith et al,Appellants. |
—[*1] Robert J. Passarelli, Babylon, N.Y. (Thomas A. Smyth of counsel), for appellant StevenLeventhal. Mulholland, Minon & Roe, Williston Park, N.Y. (Garrett P. Rooney of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Kathleen Smith andSteven Leventhal separately appeal from an order of the Supreme Court, Dutchess County(McCarty III, J.), dated August 7, 2008, which granted the plaintiff's motion for leave to renewand reargue her opposition to their separate motions for summary judgment dismissing thecomplaint insofar as asserted against each of them on the ground that the plaintiff did not sustaina serious injury within the meaning of Insurance Law § 5102 (d), which had been grantedin an order dated May 6, 2008, and upon renewal and reargument, in effect, vacated the originaldetermination in the order dated May 6, 2008, and thereupon denied their motions for summaryjudgment.
Ordered that on the Court's own motion, the notice of appeal dated September 5, 2008 isdeemed to be a notice of appeal by the defendant Steven Leventhal (see CPLR 2001;Matter of Tagliaferri v Weiler, 1 NY3d 605 [2004]); and it is further,
Ordered that the order dated August 7, 2008 is reversed, on the law, with one bill of costspayable to the defendants Kathleen Smith and Steven Leventhal appearing separately and filingseparate briefs, the plaintiff's motion for leave to renew and reargue is denied, and the orderdated May 6, 2008 is reinstated.
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]; see Chernysheva v Pinchuck, 57 AD3d936 [2008]; Dinten-Quiros vBrown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). The Supreme Court erredin granting that branch of the plaintiff's motion which was for leave to renew, which was basedon the medical report of Dr. Mark G. Grossman, dated June 3, [*2]2008. Among other things, this report contained information fromexaminations that occurred in 2006 and 2007 that could have been, but was not, included inopposition to the defendants' separate motions for summary judgment dismissing the complaint.The plaintiff failed to provide any justification for the failure to present such evidence on theoriginal motions.
The Supreme Court further erred in granting that branch of the plaintiff's motion which wasfor leave to reargue. "Motions for reargument are addressed to the sound discretion of the courtwhich decided the prior motion and may be granted upon a showing that the court overlooked ormisapprehended the facts or law or for some [other] reason mistakenly arrived at its earlierdecision" (E.W. Howell Co., Inc. vS.A.F. La Sala Corp., 36 AD3d 653, 654 [2007] [internal quotation marks omitted];see CPLR 2221 [d]; McDonaldv Stroh, 44 AD3d 720, 721 [2007]; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654,655 [2007]). The defendants, in support of their respective motions for summary judgment, mettheir prima facie burdens of showing that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure vAvis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).In opposition, the plaintiff failed to raise a triable issue of fact.
The affirmed medical report of Dr. Stephen Geiger, dated January 4, 2008, was insufficientto raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervicalspine as a result of the subject accident. In this report, while Dr. Geiger noted that cervical spinerange of motion was "restricted," he failed to set forth any quantified range of motion findingsconcerning the plaintiff's cervical spine, nor did he provide a qualitative assessment of hercervical spine (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Shtesl v Kokoros, 56 AD3d 544[2008]).
Dr. Grossman's report, dated January 29, 2008, also failed to raise a triable issue of fact.While Dr. Grossman noted left shoulder range of motion findings, he failed to compare thosefindings to what is normal (seeBanguela v Babbo, 51 AD3d 833 [2008]; Page v Belmonte, 45 AD3d 825 [2007]; Malave v Basikov, 45 AD3d 539[2007]; Fleury v Benitez, 44 AD3d996 [2007]; Nociforo v Penna,42 AD3d 514 [2007]). Even if these findings revealed significant limitations in the plaintiff'sleft shoulder range of motion, neither Dr. Grossman nor the plaintiff proffered objective medicalevidence that revealed the existence of significant limitations in the plaintiff's left shoulder rangeof motion that were contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563[2008]; Ferraro v Ridge Car Serv.,49 AD3d 498 [2008]; D'Onofrio vFloton, Inc., 45 AD3d 525 [2007]).
Lastly, inasmuch as the plaintiff submitted no medical evidence dated earlier than 2008 inopposition to the defendants' motions, she failed to submit competent medical evidence that theinjuries she allegedly sustained in the subject accident rendered her unable to performsubstantially all of her daily activities for not less than 90 days of the first 180 days subsequentto the subject accident (see Roman vFast Lane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274 AD2d569 [2000]). Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.