McNeil v. Dixon

• Decision Date: 30 July 2004
• Docket Number: 2003-05710.
• Citation: 780 N.Y.S.2d 635,9 A.D.3d 481,2004 NY Slip Op 06257
• Parties: CHAREST McNEIL, Respondent, v. TREENA DIXON et al., Appellants.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 481

780 N.Y.S.2d 635

2004 NY Slip Op 06257

CHAREST McNEIL, Respondent, v. TREENA DIXON et al., Appellants.

2003-05710.

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 30, 2004.

In an action to recover damages for personal injuries, the defendant

Treena Dixon appeals, and the defendants Leonid Kurlat and Boris Knopp separately appeal, from an order of the Supreme Court, Kings County (Held, J.), dated May 30, 2003, which granted the plaintiff's motion, denominated as one for leave to renew and reargue, and treated as one for leave to renew, but which was, in actuality, one for leave to reargue the defendants' prior separate motions for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), which had been granted in an order dated July 31, 2002, and thereupon vacated the order dated July 31, 2002, and denied their prior separate motions for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provisions thereof vacating the order dated July 31, 2002, and denying the defendants' prior separate motions for summary judgment and substituting therefor a provision adhering to the order dated July 31, 2002; as so modified, the order is affirmed, with one bill of costs to the defendants appearing separately and filing separate briefs.

The Supreme Court improperly treated the plaintiff's motion as one for renewal, rather than reargument. The new affidavit submitted by the plaintiff's physician did not offer new facts which were unavailable at the time of the original motion (see CPLR 2221 [e]), but demonstrated that the Supreme Court had overlooked or misapprehended certain facts contained in his original affidavit (see CPLR 2221 [d]; Lin v City of New York, 305 AD2d 553 [2003]). The Supreme Court, in effect, granted reargument, since it reviewed the merits of the plaintiff's arguments (see McNamara v Rockland County Patrolmen's Benevolent Assn., 302 AD2d 435 [2003]; Garieri v International Bus. Machs. Corp., 275 AD2d 730 [2000]). Upon reargument, the Supreme Court should have adhered to its previous determination granting the defendants' separate motions to dismiss the complaint.

The defendants established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) which was causally related to the accident that occurred on August 22, 1997 (see Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition to their motions, the plaintiff failed to present evidence sufficient to raise a triable issue of fact as to whether his injuries were causally related to the accident on August 22, 1997 (hereinafter the August accident), rather than to an accident that occurred approximately seven months earlier, on January 10, 1997 (hereinafter the January accident).

In a personal injury action commenced by the plaintiff in Nassau County in connection with the January accident, the plaintiff alleged injuries to his cervical and lumbar spine which were similar to the injuries he claimed to have sustained in the August accident (see Omar v Goodman, 295 AD2d 413 [2002]). The Supreme Court issued an order in the Nassau County action determining that there was an issue of fact as to whether the plaintiff sustained a serious injury as a result of that accident. Therefore, in the case at bar, the plaintiff was required to present medical evidence that the August accident either caused new injuries or aggravated injuries sustained in the previous accident.

The same chiropractor treated the plaintiff after both accidents. However, no affidavit by that chiropractor was submitted comparing the injuries allegedly sustained in the August accident to those sustained in the January accident. The plaintiff instead relied on an affidavit by a physician who did not examine him until May 6, 1998, and there is no indication in the physician's affidavit that he reviewed the plaintiff's medical records concerning the plaintiff's condition immediately following the previous accident. The plaintiff also relied on magnetic resonance imaging (hereinafter MRI) tests which revealed herniated discs in his cervical and lumbar spine. However, as the tests were not performed until nearly one year after the August accident, and were the only MRI tests...