Opinion
2018–02313 Index No. 601394/15
06-17-2020
Sheryl DEMBOWSKI, Respondent, v. Bentley MORRIS, et al., Appellants.
Sobel Pevzner, LLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn ], of counsel), for appellants. Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker and Duffy & Duffy, PLLC [John S. Kanzler ], of counsel), for respondent.
Sobel Pevzner, LLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn ], of counsel), for appellants.
Cannon & Acosta, LLP, Huntington Station, N.Y. (June Redeker and Duffy & Duffy, PLLC [John S. Kanzler ], of counsel), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered December 22, 2017. The order, insofar as appealed from, denied that branch of the defendants' motion which was for leave to renew their opposition to that branch of the plaintiff's motion which was for summary judgment in her favor on the issue of whether she sustained 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 entered May 22, 2017.
ORDERED that the order entered December 22, 2017, is affirmed insofar as appealed from, with costs.
The underlying facts of this action are recited in this Court's decision and order on a related appeal, decided herewith (see Dembowski v. Morris, 184 A.D.3d 741, 124 N.Y.S.3d 245 [Appellate Division Docket No. 2017–06463 ] ). By order entered December 22, 2017, the Supreme Court, inter alia, denied that branch of the defendants' motion which was for leave to renew their opposition to that branch of the plaintiff's motion which was for summary judgment in her favor on the issue of whether she sustained 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 entered May 22, 2017. The defendants appeal.
A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2] ; Bukhtiyarova v. Cohen, 172 A.D.3d 1153, 1155–1156, 102 N.Y.S.3d 57 ; Phoenix Grantor Trust v. Exclusive Hospitality, LLC, 172 A.D.3d 927, 927, 97 N.Y.S.3d 872 ). Here, even accepting the defendants' proffered justification for the failure to present the new expert opinions in their original opposition to the plaintiff's motion, the new facts would not have changed the prior determination. In the order entered May 22, 2017, the Supreme Court determined that the plaintiff established, as a matter of law, that she suffered a serious injury under the 90/180–day category of Insurance Law § 5102(d). The expert affirmation proffered by the defendants' examining orthopedist, Daniel Rich, in support of the defendants' renewal motion acknowledged that the plaintiff had been diagnosed with injuries "consistent with" the subject motor vehicle accident, but failed to offer an opinion as to whether the limitations the plaintiff experienced during at least 90 of the first 180 days following the accident were related to these injuries (see Kapeleris v. Riordan, 89 A.D.3d 903, 904, 933 N.Y.S.2d 92 ); see also Strilcic v. Paroly, 75 A.D.3d 542, 543, 903 N.Y.S.2d 905 ; Encarnacion v. Smith, 70 A.D.3d 628, 629, 893 N.Y.S.2d 625.
In light of our determination, we need not reach the parties' remaining contentions.
BALKIN, J.P., COHEN, BARROS and IANNACCI, JJ., concur.