Yebo v. Cuadra
| Decision Date | 01 August 2012 |
| Parties | Joseph O. YEBO, appellant, v. Helene M. CUADRA, respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Tamara M. Harris, New York, N.Y., for appellant.
James G. Bilello, Westbury, N.Y. (Andrew Gentile of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated July 29, 2009, which denied his motion for leave to reargue and renew his opposition to the defendant's prior motion, inter alia, for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, which had been granted in an order of the same court dated February 9, 2009.
ORDERED that one bill of costs is awarded to the defendant.
On November 22, 2001, the plaintiff allegedly sustained personal injuries when a vehicle owned and operated by the defendant struck his vehicle. In August 2008, at a point in the litigation when the plaintiff was not represented by counsel, the defendant moved, inter alia, 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) as a result of the subject accident. The plaintiff opposed the motion, relying upon a brief affidavit from his treating physician, which addressed the issue of serious injury by stating only that the plaintiff had been totally and permanently disabled as a result of the November 2001 accident, and that his disability was not related to prior automobile accidents. In an order dated February 9, 2009, the Supreme Court granted that branch of the defendant's motion which was 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) as a result of the subject accident.Shortly after filing a notice of appeal from the order dated February 9, 2009, the plaintiff, now represented by counsel, moved for leave to reargue and renew his opposition to the defendant's prior motion. In support of the branch of his motion which sought leave to renew, the plaintiff submitted an additional affirmation from his treating physician, which described the injuries the plaintiff had allegedly sustained in the November 2001 accident, and disputed some of the findings set forth in the various physicians' reports that the defendant had offered in support of his summary judgment motion. In an order dated July 29, 2009, the Supreme Court denied the plaintiff's motion for leave to reargue and renew. The plaintiff also appealed from the order dated July 29, 2009. While the second appeal was pending, this Court dismissed the plaintiff's earlier appeal for failure to perfect in accordance with the rules of this Court ( see22 NYCRR 670.8[h] ).
Contrary to the defendant's contention, the dismissal of the earlier appeal does not preclude our review of so much of the order dated July 29, 2009, as denied that branch of the plaintiff's motion which was for leave to renew. As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so ( see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86;Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575). Here, since the issue of whether the plaintiff should have been granted leave to renew based upon the submission of an additional affirmation from his treating physician could not have been...
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