Opinion
570473/03.
Decided December 23, 2003.
Defendant Javier Ramos appeals from an order of the Civil Court, Bronx County, entered August 6, 2002 (Nelson S. Roman, J.), denying his motion for summary judgment dismissing the complaint, and from an order of the same court and Judge entered January 15, 2003, denying his motion to "reargue" the aforesaid order of August 6, 2002.
Order entered January 15, 2003 (Nelson S. Roman, J.), reversed, with $10 costs, renewal granted and, on renewal, the motion of defendant Ramos for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment in favor of said defendant dismissing the complaint as against him.
Appeal from order entered August 6, 2002 (Nelson S. Roman, J.) dismissed, without costs, as academic.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
Defendant-appellant's initial motion for summary judgment was denied upon the stated ground that the physician's report submitted in support of the motion was neither sworn nor affirmed pursuant to CPLR 2106. Defendant moved to "reargue" soon thereafter, submitting a substantively-identical medical report in proper form, and explaining, through counsel, that the cited infirmity in his original moving papers was the result of an "oversight". Defendant's motion, which, contrary to its designation, was one to renew, not reargue ( see, Cespedes v. McNamee, 308 AD2d 409, 410), should have been granted in these circumstances, where defendant's initial failure to submit the doctor's report in proper form was inadvertent and no prejudice attributable to the short delay was shown by plaintiff ( id.; see, Ramos v. Dekhiyar, 301 AD2d 428, 429).
On the merits, defendant established prima facie entitlement to summary judgment through its renewed submission, comprising the deposition testimony of the infant plaintiff's mother indicating that plaintiff's claimed back injuries neither restricted plaintiff's activities nor caused her to miss school, and the properly affirmed physician's report setting forth in detail the results of his examination of the infant plaintiff and the basis for his conclusion of "no abnormal findings." Plaintiffs, whose opposing submission did not address the "serious injury" issue, failed to meet their consequent burden to raise a material issue of fact necessitating a trial ( see, Franchini v. Palmieri, ___ NY2d ___, decided Nov. 25, 2003).
This constitutes the decision and order of the court.