Cespedes v. McNamee

Sep 30, 2003
Versions:308 A.D.2d 409
764 N.Y.S.2d 818
2003 N.Y. App. Div. LEXIS 9924

—Order, Supreme Court, Bronx County (Dianne Renwick, J.), entered November 12, 2002, which granted plaintiffs motion to renew a prior order granting defendants’ motion for summary judgment dismissing the complaint for lack of a serious injury as defined by Insurance Law § 5102 (d), and, upon renewal, denied the motion for summary judgment, unanimously affirmed, without costs.

The IAS court originally granted defendants’ motion for summary judgment because the physician’s report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court’s decision, plaintiff moved to renew and reargue, submitting his doctor’s findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court’s order. The IAS court properly granted plaintiff’s motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor’s report in affidavit form “ ‘was inadvertent, and * * * absen[t] * * * any showing by defendants of prejudice attributable to the short delay caused by such failure’” (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor’s affidavit correlating significant quantified range of motion limitations in plaintiffs lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiffs back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]). Concur — Nardelli, J.P., Mazzarelli, Andrias, Ellerin and Marlow, JJ.