Acosta v. Rubin
| Decision Date | 22 December 2003 |
| Docket Number | 2003-10647.,2002-08525. |
| Citation | 768 N.Y.S.2d 642,2003 NY Slip Op 19692,2 A.D.3d 657 |
| Parties | JOHANNA ACOSTA et al., Appellants, v. PATRICIA C. RUBIN et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the plaintiffs.
In opposition to the defendants' motion for summary judgment, the plaintiffs submitted affidavits of their treating chiropractor which were not notarized and, consequently, were not considered by the Supreme Court. After the motion was granted, the plaintiffs moved, inter alia, for leave to renew, submitting properly notarized affidavits, an affirmation of counsel explaining that the original affidavits had been notarized but file copies were mistakenly submitted, and an affidavit of the chiropractor stating that his original affidavits had been properly executed and notarized. Under the circumstances, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew (see Vita v Alstom Signaling, 308 AD2d 582 [2003]). Upon renewal, the defendants' motion for summary judgment should have been denied.
Contrary to the plaintiffs' contention, the defendants established a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Figueroa v Westbury Trans., 304 AD2d 614 [2003]; Elfiky v Harris, 301 AD2d...
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