| Koufalis v Logreira |
| 2013 NY Slip Op 00184 [102 AD3d 750] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Christine Koufalis, Appellant, v Franklin Logreira,Respondent. |
—[*1] Hannum Feretic Prendegast & Merlino, LLC, New York, N.Y. (Jessica G. Price ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Strauss, J.), dated May 22, 2012, whichdenied her motion for leave to renew or reargue her opposition to the defendant's motionfor summary judgment dismissing the complaint on the ground that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a resultof the subject accident, which was determined in an order of the same court dated March28, 2012.
Ordered that the appeal from so much of the order as denied that branch of theplaintiff's motion which was for leave to reargue is dismissed; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law and in the exerciseof discretion, that branch of the plaintiff's motion which was for leave to renew isgranted, and, upon renewal, the defendant's motion for summary judgment dismissing thecomplaint is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from so much of the order as denied that branch of the plaintiff's motionwhich was for leave to reargue must be dismissed, as no appeal lies from an orderdenying reargument (see Violav Blanco, 1 AD3d 506, 507 [2003]).
In opposition to the defendant's motion for summary judgment, the plaintiffsubmitted unaffirmed reports from certain physicians. After the defendant's motion wasgranted, the plaintiff moved, inter alia, for leave to renew, submitting affirmations fromthose physicians attesting to the truth and accuracy of the reports. Under thesecircumstances, the Supreme Court improvidently exercised its discretion in denying thatbranch of the motion which was for leave to renew, and should have allowed the plaintiffthe opportunity to correct her mistake by submitting the identical evidence in proper form(see Brightly v Dong Liu,77 AD3d 874 [2010]; Arkin v Resnick, 68 [*2]AD3d 692, 693-694 [2009]).
Upon renewal, the Supreme Court should have denied the defendant's motion forsummary judgment. The defendant met his prima facie burden of showing that theplaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendant submitted competent medical evidence establishing, prima facie, that theplaintiff did not sustain any serious injuries to her left knee or to the cervical and lumbarregions of her spine (see Fudolv Sullivan, 38 AD3d 593, 594 [2007]), and that the plaintiff did not sustain aserious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Karpinos v Cora, 89 AD3d994, 995 [2011]).
In opposition, however, the plaintiff submitted evidence raising a triable issue of factas to whether she sustained serious injuries to the cervical and lumbar regions of herspine (see Perl v Meher, 18NY3d 208, 218-219 [2011]). Thus, upon renewal, the Supreme Court should havedenied the defendant's motion for summary judgment dismissing the complaint. Dillon,J.P., Hall, Roman and Cohen, JJ., concur.