| Vaco v Arellano |
| 2010 NY Slip Op 04776 [74 AD3d 791] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Sergio Vaco, Appellant, v Edgar Arellano et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondents Cedric Kenville Jack and Veronica Charles.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schneier, J.), dated July 31, 2009, which denied his motionfor leave to renew his opposition to the motion of the defendants Edgar Arellano and CampuzanoCar Service, and the separate motion of the defendants Cedric Kenville Jack and VeronicaCharles, for summary judgment dismissing the complaint insofar as asserted against them on theground that he did not sustain a serious injury within the meaning of Insurance Law §5102 (d), which had been granted in an order of the same court dated March 13, 2009.
Ordered that the order dated July 31, 2009, is reversed, on the law, on the facts, and in theexercise of discretion, with one bill of costs, the motion for leave to renew is granted, and, uponrenewal, the order dated March 13, 2009, is vacated, and the defendants' motions for summaryjudgment are denied.
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 Gonzalez v Vigo Constr. Corp., 69AD3d 565 [2010]). The plaintiff offered a reasonable excuse for not including an affidavitfrom his treating physician in opposition to the original motion (see Gonzalez v Vigo Constr. Corp., 69AD3d 565 [2010]; Ralat v New York City Hous. Auth., 265 AD2d 185 [1999]),which established that there were triable issues of fact which precluded the granting of summaryjudgment.
The plaintiff adequately explained the cessation of his physical therapy on the ground that hereached maximum medical improvement (see Pommells v Perez, 4 NY3d 566 [2005]; Eusebio v Yannetti, 68 AD3d 919[2009]; Shtesl v Kokoros, 56 AD3d544 [2008]). Dillon, J.P., Santucci, Balkin, Belen and Sgroi, JJ., concur.