Opinion
015150/06.
Decided July 25, 2011.
Braff, Harris Sukoneck, Crystal E. Nagy, Esq., Seventh Floor, New York, New York, Counsel for the Plaintiff.
London Fischer, Michael J. Carro, Esq., New York, New York, Counsel for the Defendants.
Papers Submitted: Notice of Motion.................................x Affidavit in Opposition....................... x Memorandum of Law in Opposition... x Reply Affirmation................................x Sur-Reply Affidavit..............................x
Upon the foregoing papers, the Plaintiff, Eileen Hughes' motion, presumably, although not so denominated, pursuant to CPLR § 2221 (f), seeking an order granting leave to renew and reargue the motion for summary judgment previously interposed by Defendants, Welsbach Electric Company (hereinafter Welsbach) and Michael Zeffer, and upon such renewal and re-argument, denying said application, is determined as hereinafter provided.
The underlying cause of action was commenced by the Plaintiff to recover for injuries she sustained as a result of an automobile accident, which occurred on October 13, 2005, whereby the vehicle she was operating was struck in the rear by the vehicle owned by the Defendant, Welsbach and operated by the Defendant, Michael Zeffer ( see Nagy Affirmation in Support at Exhibits B, C, E, G). The Plaintiff alleges that as a result thereof, she has sustained serious injuries within the ambit of Insurance Law § 5102 (d) ( id. at Exhibits B, C, E).
By Short Form Order dated April 7, 2010, this Court granted the Defendants' previously interposed motion for summary judgment and dismissed the Plaintiff's complaint ( id. at Exhibit A).
In rendering its determination, this Court held that the moving Defendants had established a prima facie showing that the Plaintiff did not sustain a serious injury and in opposition thereto the Plaintiff failed to raise a triable issue of fact ( id. at Exhibit A at pp. 5, 6, 7). Specifically, based upon the Plaintiff's own sworn deposition testimony, as well as the medical reports submitted therein, this Court found that "there [was] no competent medical evidence admitted to show that the Plaintiff suffered anything more than a mild, minor, or slight limitation of use as a result of the accident in issue" ( id. at p. 6). [emphasis in original].
In moving for renewal and re-argument, counsel for the Plaintiff asserts that subsequent to this Court's original decision, the Plaintiff, upon the recommendation of Dr. Andrew Sama, M.D., underwent a discogram on 4/27/10, the results of which demonstrated the existence of an annular tear of the disc at L5-S1, which allegedly necessitated surgical intervention ( see Nagy Affirmation in Support at ¶¶ 5, 17, 18, 19, 25; see also Exhibits I, J). The Plaintiff's counsel particularly asserts that "[w]hile all other MRI's indicated abnormalities, only the discogram revealed an actual tear of the disc" ( see Nagy Affirmation in Support at ¶ 18).
Said surgery was performed on May 14, 2010, the scope of which was "in the form of anterior lumbar interbody fusion [at] L5-S1" ( see Nagy Affirmation in Support at Exh. J).
In support of the instant application, counsel provides, inter alia, the Affidavit of Marc Chernoff, M. D., to whom the Plaintiff presented on August 19, 2010 purportedly "for the purpose of an Independent Medical Examination" ( id. at Exhibit K at ¶ 2). Dr. Chernoff avers that the Plaintiff "suffered severe low back and right lower extremity pain, as well as left lower extremity pain, * * * [and] left lower extremity numbness" ( id. at ¶ 7). He further states that the Plaintiff "[had] an MRI that shows evidence of disc degeneration at L5-S1 with small central disc protrusion" and that "a recent discogram indicates that [the plaintiff] has an annular tear at L5-S1" ( id.). Dr. Chernoff concluded "with a reasonable degree of medical certainty that as a result of her injuries, [the plaintiff] will have a permanent loss of range of motion and that the motor vehicle accident of October 13, 2005" exacerbated a pre-existing condition which warranted surgical intervention ( id. at ¶ 8).
The Court notes that in Reply, counsel for the Plaintiff provides a medical report from Dr. Chernoff, as well as records attendant to the Plaintiff's surgery. However, as these documents were not provided in the moving papers, same were not considered by this Court ( Jackson-Cutler v. Long , 2 AD3d 590 [2d Dept. 2003]; Osborne v. Zornberg , 16 AD3d 643 [2d Dept. 2005]).
Counsel for the Plaintiff posits that these new medical developments as recited herein clearly demonstrate that Ms. Hughes has suffered a serious injury as contemplated by Insurance Law § 5102 (d), thus entitling the Plaintiff to the relief herein requested ( see Nagy Affirmation in Support at ¶¶ 5, 25).
In opposing the instant application, counsel for the Defendants contends, inter alia, that as the branch of the Plaintiff's motion which seeks reargument was made beyond the 30 day period following receipt of a copy of this Court's decision with Notice of Entry, said application is untimely and should be denied ( see Carro Affidavit in Opposition at ¶¶ 14-18; see also Defendants' Memorandum of Law at pp. 3, 4). Counsel further contends that the Plaintiff has failed to set forth any facts or law which were misapprehended by this Court in rendering its prior decision, thus warranting denial of that branch of the application seeking re-argument ( see Carro Affidavit in Opposition at ¶¶ 19-22; see also the Defendants' Memorandum of Law at pp. 6,7).
With particular respect to that branch of the application seeking renewal, the Defendants' counsel asserts that the Plaintiff has not offered any new facts which were unavailable at the time the Defendants' summary judgment motion was interposed, and thus said facts cannot form the basis of the instant application ( see Carro Affidavit in Opposition at ¶¶ 25, 27, 29, 30; see also Defendants' Memorandum of Law at pp. 7, 8, 9, 10). Specifically, counsel contends that while the Plaintiff asserts an annular tear at L5-S1 was first revealed by the disogram performed on April 27, 2010, the office records of Dr. Sama, which were previously submitted by the Plaintiff in opposition to the Defendants' summary judgment motion, contain an explicit reference to a lumbar MRI establishing the presence of an annular tear at L5-S1 ( see Carro Affidavit in Opposition at ¶¶ 31, 32, 33, 34, 55, 64).
In addition to the foregoing, the Defendants' counsel argues that prior to the issuance of this Court's decision, the Plaintiff was fully cognizant of the need for a discogram and surgery, and notwithstanding said knowledge, neither submitted a Sur-Reply nor attempted to seek an adjournment of the Defendants' prior motion pending the outcome thereof ( id. at ¶ 39; see also Defendants' Memorandum of Law at pp. 7-10). To this point, counsel again makes reference to the office notes of Dr. Sama, which establish that on March 16, 2010, the Plaintiff presented thereto, at which time matters concerning whether the Plaintiff should undergo a discogram, as well as the potential need for surgical intervention were clearly discussed ( see Carro Affidavit in Support at ¶ 37, 38; see also Defendants' Memorandum of Law at p. 9 ; see also Nagy Affirmation in Support at Exhibit F). Finally, counsel for the Defendants posits that this Court properly determined that the Plaintiff herein failed to sustain a serious injury and accordingly the renewal application should be denied. ( see Carro Affirmation in Support at 43-77; see Defendants' Memorandum of Law at pp. 10-18).
It is well settled that "[m]otions for reargument are addressed to the sound discretion of the trial court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision." ( Viola v. City of New York , 13 AD3d 439 [2d Dept. 2004]; Carrillo v. PM Realty Group, 16 AD3d 611 [2d Dept. 2005]; McNeil v. Dixon , 9 AD3d 481 [2d Dept. 2004]). A motion to reargue is not to afford an unsuccessful party with additional opportunities to reargue issues previously decided, or to set forth arguments which differ in substance from those originally articulated ( McGill v. Goldman, 261 AD2d 593 [2d Dept. 1999]; Woody's Lumber Co., Inc. v. Jayram Realty Corp. , 30 AD3d 590 [2d Dept. 2006]; Gellert Rodner v. Gem Community Mgt. , 20 AD3d 388 [2d Dept. 2005]).
Alternatively, 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" (CPLR § 2221 [e] [2]). The purpose of a motion to renew is "to draw the court's attention to new or additional facts, which, although in existence at the time of the original motion, were unknown to the party seeking leave to renew and therefore not brought to the court's attention" ( Gomez v. Needham Capital Group, Inc. , 7 AD3d 568 [2d Dept. 2004] quoting Natale v. Samel Assocs., 264 AD2d 384 [2d Dept. 1999]).
Addressing initially that branch of the application seeking re-argument, in addition to the untimeliness thereof, the Plaintiff neither establishes or even argues how this Court "overlooked or misapprehended the facts or law" in rendering its prior determination (CPLR § 2221 [d] [3]; Viola v. City of New York , 13 AD3d 439 [2d Dept. 2004], supra; Carrillo v. PM Realty Group, 16 AD3d 611 [2d Dept. 2005], supra; McNeil v. Dixon , 9 AD3d 481 [2d Dept. 2004], supra).
The record indicates that the plaintiff was served with a copy of Judgment with Notice of Entry on June 2, 2010 ( see Carro Affidavit in Opposition at Exh. E). Accordingly, that branch of the application seeking re-argument interposed on October 19, 2010 is clearly untimely (CPLR § 2221[d][3]).
As such, the branch of the Plaintiff's motion seeking reargument is DENIED.
With respect to the Plaintiff's renewal application, as noted above, the Plaintiff predicates her request for relief therefor upon "new" medical evidence, which allegedly demonstrates for the first time, the existence of an annular tear of the disc at L5-S1. However, said assertion is completely belied by the record as developed herein. In deciding the application sub judice, the Court has carefully reviewed the office records of Dr. Sama, dated March 30, 2009, which were previously submitted and relied upon by the Plaintiff in opposing to the Defendants' summary judgment application. Upon said review, it is revealed that Dr. Sama clearly noted that "[t]he patient had [an] MRI of the lumbar spine * * * on November 20, 2008" and that the results thereof demonstrated the presence of "disc degeneration with annular tear and small central disc bulge and herniation at L5-S1" ( Gomez v. Needham Capital Group, Inc. , 7 AD3d 568 [2d Dept. 2004], supra). Moreover, while the discogram and surgery were done subsequent to the issuance of this Court's decision on April 7, 2010, the injury which necessitated same was plainly known to the Plaintiff, as well as her physician prior thereto ( id.). Thus, while the Plaintiff's counsel posits that "only the discogram revealed an actual tear of the disc", the Plaintiff's own medical records dating from March of 2009, clearly and unequivocally demonstrate otherwise ( id.).
see Carro Affidavit in Opposition at Exhibit D.
Thus, based upon the foregoing, that branch of the Plaintiff's application, which seeks leave to renew the Defendants' previous motion for summary judgment, is hereby DENIED.
Moreover, the Court notes that the Plaintiff failed to attach the prior motion papers to this motion. The Court does not retain the papers following the disposition of a motion and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions. ( Sheedy v. Pataki, 236 AD2d 92 (3d Dept. 1997) Based upon this failure, the Court could have denied this motion solely on those grounds.
This decision constitutes the decision and order of the court