Barnett v. Smith

CourtNew York Supreme Court Appellate Division
Citation2009 NY Slip Op 05939,64 A.D.3d 669,883 N.Y.S.2d 573
Docket Number2008-07976.
PartiesBARBARA BARNETT, Respondent, v. KATHLEEN SMITH et al, Appellants.
Decision Date21 July 2009

Ordered that on the Court's own motion, the notice of appeal dated September 5, 2008 is deemed to be a notice of appeal by the defendant Steven Leventhal (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605 [2004]); and it is further,

Ordered that the order dated August 7, 2008 is reversed, on the law, with one bill of costs payable to the defendants Kathleen Smith and Steven Leventhal appearing separately and filing separate briefs, the plaintiff's motion for leave to renew and reargue is denied, and the order dated May 6, 2008 is reinstated.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Chernysheva v Pinchuck, 57 AD3d 936 [2008]; Dinten-Quiros v Brown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). The Supreme Court erred in granting that branch of the plaintiff's motion which was for leave to renew, which was based on the medical report of Dr. Mark G. Grossman, dated June 3, 2008. Among other things, this report contained information from examinations that occurred in 2006 and 2007 that could have been, but was not, included in opposition to the defendants' separate motions for summary judgment dismissing the complaint. The plaintiff failed to provide any justification for the failure to present such evidence on the original motions.

The Supreme Court further erred in granting that branch of the plaintiff's motion which was for leave to reargue. "Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision" (E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007] [internal quotation marks omitted]; see CPLR 2221 [d]; McDonald v Stroh, 44 AD3d 720, 721 [2007]; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007]). The defendants, in support of their respective motions for summary judgment, met their prima facie burdens of showing that the plaintiff 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., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact.

The affirmed medical report of Dr. Stephen Geiger, dated January 4, 2008, was insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervical spine as a result of the subject accident. In this report, while Dr. Geiger noted that cervical spine range of motion was "restricted," he failed to set forth any quantified range of motion findings concerning the plaintiff's cervical spine, nor did he provide a qualitative assessment of her cervical spine (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Shtesl v Kokoros, 56 AD3d 544 [2008]).

Dr. Grossman's report, dated January 29, 2008,...

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