| Diaz v Chaudhry |
| 2012 NY Slip Op 00175 [91 AD3d 590] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Jose Diaz, Appellant, v Abdul R. Chaudhry et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), enteredSeptember 30, 2010, as (a) granted the defendants' motion to vacate their default in opposing hismotion for leave to renew his opposition to the defendants' motion for summary judgmentdismissing the complaint on the ground that he did not sustain a serious injury within themeaning of Insurance Law § 5102 (d), and (b) vacated the determination in an order of thesame court dated January 8, 2010, entered upon the defendants' default, upon renewal, denyingthe defendants' motion for summary judgment dismissing the complaint on the ground that he didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d), and thereuponadhered to the determination in an order dated July 21, 2009, granting the defendants' motion forsummary judgment dismissing the complaint on that ground.
Ordered that the order entered September 30, 2010, is affirmed insofar as appealed from,with costs.
While we affirm the order entered September 30, 2010, insofar as appealed from, we do so,in part, on a ground not relied upon by the Supreme Court.
The Supreme Court providently exercised its discretion in granting the defendants' motion tovacate their default in opposing the plaintiff's motion for leave to renew his opposition to theirsummary judgment motion, as their claim of law office failure was supported by a detailed andcredible explanation of the default (seeKohn v Kohn, 86 AD3d 630 [2011]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d1030 [2011]). Moreover, the defendants demonstrated the existence of a potentiallymeritorious opposition.
Contrary to the plaintiff's assertion on appeal, the Supreme Court, upon renewal, did not errin adhering to its initial determination granting the defendants' motion for summary judgmentdismissing the complaint on the ground that he did not sustain a serious injury within themeaning [*2]of Insurance Law § 5102 (d). In support oftheir motion for summary judgment, the defendants met their prima facie burden of showing thatthe plaintiff did not sustain a serious injury to his right knee under the permanent consequentiallimitation of use or the significant limitation of use categories of Insurance Law § 5102 (d)as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345[2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Upon renewal, the vast majorityof the plaintiff's medical submissions in opposition to the defendants' showing failed to raise atriable issue of fact since they were not in admissible form (see Grasso v Angerami, 79NY2d 813, 814-815 [1991]; Kolodziej vSavarese, 88 AD3d 851 [2011]; Capriglione v Rivera, 83 AD3d 639, 640 [2011]), while thecontents of the remainder of the submissions were factually insufficient. Furthermore, theplaintiff failed to adequately explain the cessation of his treatment after 2003 (see Pommells v Perez, 4 NY3d566, 574 [2005]; Vasquez v JohnDoe #1, 73 AD3d 1033, 1034 [2010]; Haber v Ullah, 69 AD3d 796 [2010]).
Since the new facts submitted by the plaintiff on the motion for leave to renew wereinsufficient to change the prior determination (see CPLR 2221 [e]), the Supreme Courtcorrectly determined that the plaintiff, upon renewal, failed to raise a triable issue of fact.Dickerson, J.P., Hall, Cohen and Miller, JJ., concur.