Tadesse v Degnich

2011 NY Slip Op 01411

Decided on February 24, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 24, 2011
Mazzarelli, J.P., Andrias, Catterson, Moskowitz, Román, JJ.
4357 18830/07






Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck
(Sharon A. Mosca of counsel), for appellants.
The Saftler Law Firm, New York (James W. Bacher of counsel),
for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 28, 2010, which, insofar as appealed from, in this action for personal injuries sustained in a motor vehicle accident, granted plaintiff's motion to reargue a prior order granting defendants-appellants' motion for summary judgment dismissing the complaint as against them on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and, upon reargument, vacated the prior order and denied appellants' motion for summary judgment, unanimously affirmed, with costs.

The motion court properly granted plaintiff's motion for reargument, since it had misapplied a "controlling principle of law" (Foley v Roche, 68 AD2d 558, 567 [1979]; see CPLR 2221[d]). When dismissing the complaint as against appellants, the court improperly relied on the gap-in-treatment argument, which appellants raised for the first time in their reply papers (see McNair v Lee, 24 AD3d 159 [2005]). Indeed, the court determined that plaintiff had otherwise raised a triable issue of fact, but that her failure to address the gap in her treatment was "fatal" to her case.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 24, 2011

CLERK