| Brightly v Dong Liu |
| 2010 NY Slip Op 07709 [77 AD3d 874] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Wayne Brightly, Appellant, v Dong Liu,Respondent. |
—[*1] Cheven Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Kings County (Bayne, J.), dated November 10, 2009, which, upon an orderof the same court dated December 18, 2008, granting the defendant's motion for summaryjudgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and upon so much of an order of thesame court dated May 14, 2009, as denied that branch of his motion which was for leave torenew his opposition to the prior motion, is in favor of the defendant and against him dismissingthe complaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, thatbranch of the plaintiff's motion which was for leave to renew is granted, upon renewal, the orderdated December 18, 2008, is vacated, the defendant's motion for summary judgment is denied,and the order dated May 14, 2009, is modified accordingly.
In opposition to the defendant's motion for summary judgment dismissing the complaint, theplaintiff submitted an affirmation of his treating chiropractor, not an affidavit. Consequently, thissubmission was not considered by the Supreme Court. After the defendant's motion was granted,the plaintiff moved, inter alia, for leave to renew, submitting a properly notarized affidavit fromhis treating chiropractor and an affidavit from an employee of the law firm that represented theplaintiff, explaining that she mistakenly thought that the plaintiff's treating chiropractor was aphysician and therefore she had not advised him that he needed to sign a notarized affidavitinstead of an affirmation. Under the circumstances, the Supreme Court improvidently exercisedits discretion in denying that branch of the plaintiff's motion which was for leave to renew (see Acosta v Rubin, 2 AD3d 657[2003]). Upon renewal, the defendant's motion for summary judgment should have been denied.
The chiropractor's affidavit submitted on behalf of the plaintiff specifying the significantcontemporaneous restrictions in the plaintiff's lumbar and cervical spine range of motion, andevidence of herniated and bulging discs as confirmed by magnetic resonance image tests, as well[*2]as recent range of motion testing showing similar limitationsin the plaintiff's cervical and lumbar spine range of motion, were sufficient to raise a triable issueof fact as to whether the plaintiff sustained a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Acosta v Rubin, 2 AD3d at 657;see also Tai Ho Kang v Young SunCho, 74 AD3d 1328 [2010]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ.,concur.