Perovich v. Liotta

Jun 19, 2000
Versions:273 A.D.2d 367
710 N.Y.S.2d 908
2000 N.Y. App. Div. LEXIS 7139

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 10, 1999, which granted the defendants’ motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated November 1, 1999, which denied their motion, in effect, for reargument.

Ordered that the appeal from the order dated November 1, 1999, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated June 10, 1999, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The Supreme Court properly granted the defendants’ motion for summary judgment. In support of their motion, the defendants established a prima facie case that neither of the plaintiffs sustained a serious injury as defined by Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). The plaintiffs’ evidence submitted in opposition to the motion was insufficient to raise a triable issue of fact. The affidavit of the plaintiffs’ treating chiropractor failed to indicate what objective medical tests he performed to measure the restrictions of motions suffered by the respective plaintiffs (see, Grossman v Wright, 268 AD2d 79; Cabri v Park, 260 AD2d 525; Merisca v Alford, 243 AD2d 613; Lincoln v Johnson, 225 AD2d 593). The Supreme Court correctly refused to consider the unsworn medical records attached to the affidavit of the plaintiffs’ chiropractor (see, Friedman v U-Haul Truck Rental, 216 AD2d 266; Shay v Jerkins, 263 AD2d 475; Decayette v Kreger Truck Renting, 260 AD2d 342; Williams v Hughes, 256 AD2d 461).

The appeal from the order dated November 1, 1999, must be dismissed. The Supreme Court properly treated the plaintiffs’ motion as a motion for reargument, the denial of which is not appealable (see, Stillway v Guzewicz, 261 AD2d 392; McGill v Polytechnic Univ., 235 AD2d 402). Friedmann, J. P., Krausman, Luciano and Schmidt, JJ., concur.