Mitchell v. Hertz Vehicles, LLC, 2007 NY Slip Op 31942(U) (N.Y. Sup. Ct. 7/2/2007)
| Decision Date | 02 July 2007 |
| Docket Number | Motion No.: 004,0100135/2005 |
| Citation | 2007 NY Slip Op 31942 |
| Parties | TERRY MITCHELL, Plaintiff, v. HERTZ VEHICLES, LLC, and VIVIAN KUO, Defendants. |
| Court | New York Supreme Court |
Plaintiff Terry Mitchell seeks to renew and reargue the prior order of this court, dated February 8, 2007, granting the defendants summary judgment dismissing the complaint on the grounds that the injuries sustained by the plaintiff fail to meet the statutory threshold of serious injury as defined in Insurance Law §5102 (d).
On July 31, 2004, plaintiffs vehicle was struck by defendant Vivian Kuo's vehicle after it ran a stop sign at the intersection of Tompkins Avenue and St. John's Avenue, Staten Island, New York. As a result, plaintiff claims to have sustained "serious" personal injuries, i.e., " permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; and a medically determined injury or impairment of a non-permanent nature which
prevented plaintiff from performing substantially all of the material acts which constitute plaintiffs usual and customary daily activities for more than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Plaintiff s February 3, 2006 Verified Bill of Particulars, para 23(d)). More specifically, plaintiff claims to have sustained, inter alia, "posterior bulging disc at L5-S 1 right-sided radiculopathy confirmed by abnormal EMG results at the L5-S1 level; straightening of the cervical spine, and numbness and tingling in the right forearm, hand and fingers" (id., para 6). Consequently, plaintiff missed approximately nine months of work immediately following the accident. On September 10, 2005, plaintiff re-injured her spine, right arm and right leg in a work-related accident.
On March 16, 2007, this court granted the defendants' motion for summary judgment and dismissed the plaintiffs action for failing to meet her burden demonstrating the existence of a triable issue of fact that she had suffered a causally related serious injury as a result of the 2004 accident. In opposition to the defendant's summary judgment motion, the plaintiff offered an affirmation of her treating chiropractor, Dr. Piazza, allegedly due to a secretarial oversight, and now offers this same report in affidavit form.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and; shall contain reasonable justification for the failure to present such facts in the prior motion" (CPLR §2221 (e)(2) and (3)). In the interest of justice, a court may grant renewal upon facts known to the movant at the time of the original motion, however the movant must offer a reasonable excuse for his failure to submit the additional evidence on the original motion (Segall v. Heyer, 161 A.D.2d 471, 473 [1st Dept. 1990]). In support of her application to renew, the plaintiff merely submitted an affidavit
of a chiropractor (Dr. Piazza) which was identical to the prior affirmations submitted by the same witness in plaintiffs opposition papers (see Doumanis v. Conzo, 265 A.D.2d 296, 297 [2nd Dept. 1999]; Matter of Brooklyn Welding Corp. V. Chin, 236 A.D.2d 392 [2nd Dept. 1997]; Taylor v. Brooklyn Hosp., 187 A.D.2d 714 [2nd Dept. 1992]; Echeverri v. Flushing Hosp. & Med. Ctr., 123 A.D.2d 818 [2nd Dept. 1986]). Plaintiffs attorney submitted an affidavit of his secretary who admitted to mistakenly labeling the chiropractor's affidavit as an affirmation due to her unfamiliarity with legal requirements. Since this evidence was not newly discovered and this court finds plaintiffs explanation for her failure to submit a proper affidavit inadequate, plaintiffs motion for renewal is denied.
In support of plaintiffs motion to reargue, plaintiff alleges...
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