| Cabrera v Gilpin |
| 2010 NY Slip Op 03239 [72 AD3d 552] |
| April 22, 2010 |
| Appellate Division, First Department |
| Glorya F. Cabrera, Appellant, v Hermina E. Gilpin et al.,Respondents. |
—[*1] Richard T. Lau & Associates, Jericho (Linda Meisler of counsel), for respondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered April 9, 2009,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs. Order, same court (Barry Salman, J.), entered October 20, 2009, insofaras it denied plaintiff's motion for renewal, unanimously affirmed, without costs. Appeal fromthat part of the October 20, 2009 order that denied plaintiff's motion for reargument unanimouslydismissed, without costs, as taken from a nonappealable paper.
Defendants demonstrated prima facie that plaintiff did not sustain a "serious injury" asdefined by Insurance Law § 5102 (d) through the affirmed reports of an orthopedist whofound no limitations in range of motion in her cervical and lumber spine, shoulders, knees andankles and opined that any injuries to those areas had resolved, a neurologist who reported anormal neurological examination and no objective neurological findings to support cervical orlumbosacral radiculopathy or carpal tunnel syndrome, and a radiologist who opined that an MRItaken of plaintiff before the instant accident revealed a degenerative disc condition notattributable to trauma.
In opposition, plaintiff submitted her doctor's affirmation in which he stated that he treatedplaintiff before the accident and then again six months after the accident; she submitted noobjective medical evidence contemporaneous with the accident (see Toulson v Young Han Pae, 13AD3d 317, 319 [2004]). Moreover, her doctor failed to address the conclusion ofdefendants' radiologist that plaintiff's condition was the result of a degenerative disease (see Valentin v Pomilla, 59 AD3d184 [2009]).
On her motion for renewal, plaintiff failed to provide a reasonable justification for her failureto present the "new facts" in her original opposition to defendants' motion (see American Audio Serv. Bur. Inc. v AT& T Corp., 33 AD3d 473, 476 [2006]). In any event, her doctor's affirmation did not fillin all the gaps in his earlier affirmation. Concur—Andrias, J.P., Saxe, Catterson,Freedman and Abdus-Salaam, JJ.