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Perovich v. Liotta

Appellate Division of the Supreme Court of New York, Second Department
Jun 19, 2000
273 A.D.2d 367 (N.Y. App. Div. 2000)

Opinion

Argued April 7, 2000.

June 19, 2000.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 10, 1999, which granted the defendants' motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated November 1, 1999, which denied their motion, in effect, for reargument.

Lebit Fruchter, Hauppauge, N.Y. (Regina C. Nichols of counsel), for appellants.

Epstein, Hill, Grammatico Gann, Hauppauge, N.Y. (Diana T. Bishop of counsel), for respondents.

Before: WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the appeal from the order dated November 1, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 10, 1999, is affirmed; and it is further,

ORDERED that the respondents are awarded one bill of costs.

The Supreme Court properly granted the defendants' motion for summary judgment. In support of their motion, the defendants established a prima facie case that neither of the plaintiffs sustained a serious injury as defined by Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955). The plaintiffs' evidence submitted in opposition to the motion was insufficient to raise a triable issue of fact. The affidavit of the plaintiffs' treating chiropractor failed to indicate what objective medical tests he performed to measure the restrictions of motions suffered by the respective plaintiffs (see, Grossman v. Wright, 268 A.D.2d 79 [2d Dept., May 8, 2000]; Cabri v. Park, 260 A.D.2d 525; Merisca v. Alford, 243 A.D.2d 613; Lincoln v. Johnson, 225 A.D.2d 593). The Supreme Court correctly refused to consider the unsworn medical records attached to the affidavit of the plaintiffs' chiropractor (see, Friedman v. U-Haul Truck Rental, 216 A.D.2d 266; Shay v. Jerkins, 263 A.D.2d 475; Decayette v. Kreger Truck Renting, 260 A.D.2d 342; Williams v. Hughes, 256 A.D.2d 461).

The appeal from the order dated November 1, 1999, must be dismissed. The Supreme Court properly treated the plaintiffs' motion as a motion for reargument, the denial of which is not appealable (see, Stillway v. Guzewicz, 261 A.D.2d 392; McGill v. Polytechnic Univ., 235 A.D.2d 402).


Summaries of

Perovich v. Liotta

Appellate Division of the Supreme Court of New York, Second Department
Jun 19, 2000
273 A.D.2d 367 (N.Y. App. Div. 2000)
Case details for

Perovich v. Liotta

Case Details

Full title:DONNA PEROVICH, ETC., ET AL., APPELLANTS, v. STEPHEN M. LIOTTA, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 19, 2000

Citations

273 A.D.2d 367 (N.Y. App. Div. 2000)
710 N.Y.S.2d 908

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