Opinion
2019–12593, 2020–03989 Index No. 607065/17
07-27-2022
Melissa A. MORALES, appellant, v. Nicholas CARLISI, et al., respondents.
Bragoli & Associates, P.C., Melville, NY (Joseph M. Sorce and Susan R. Nudelman of counsel), for appellant. Carman, Callahan & Ingham, LLP, Farmingdale, NY (Tracy S. Reifer of counsel), for respondent Nicholas Carlisi.
Bragoli & Associates, P.C., Melville, NY (Joseph M. Sorce and Susan R. Nudelman of counsel), for appellant.
Carman, Callahan & Ingham, LLP, Farmingdale, NY (Tracy S. Reifer of counsel), for respondent Nicholas Carlisi.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered October 23, 2019, and (2) an order of the same court (Thomas Feinman, J.) entered May 7, 2020. The order entered October 23, 2019, granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against each of them 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 order entered May 7, 2020, denied the plaintiff's motion for leave to renew her opposition to the defendants’ separate motions.
ORDERED that the orders are affirmed, with one bill of costs to the defendant Nicholas Carlisi.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on July 25, 2014. The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them 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 accident. In an order entered October 23, 2019, the Supreme Court granted the defendants’ separate motions. Thereafter, the plaintiff moved for leave to renew her opposition to the defendants’ separate motions. In an order entered May 7, 2020, the court denied the plaintiff's motion. The plaintiff appeals from both orders.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and the plaintiff's left shoulder and knees did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). In opposition, the plaintiff failed to raise a triable issue of fact as her experts failed to compare their range-of-motion findings to what is normal (see Saunders v. Mian, 176 A.D.3d 994, 995, 113 N.Y.S.3d 82 ; Pupko v. Hassan, 149 A.D.3d 988, 989, 50 N.Y.S.3d 295 ). Accordingly, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.
"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" ( Dembowski v. Morris, 184 A.D.3d 736, 737, 124 N.Y.S.3d 202 ; see CPLR 2221[e][2] ). Here, the plaintiff failed to provide a reasonable justification for her failure to present the new facts in her original opposition to the defendants’ separate motions, and, in any event, those facts would not have changed the prior determination (see Moore v. Burns, 165 A.D.3d 1098, 1100, 85 N.Y.S.3d 197 ). Thus, the Supreme Court properly denied the plaintiff's motion for leave to renew her opposition to the defendants’ separate motions.
DUFFY, J.P., IANNACCI, RIVERA and WOOTEN, JJ., concur.