Opinion
2004-1438 N C.
Decided July 21, 2005.
Appeal by plaintiff from an order of the District Court, Nassau County (D. Gross, J.), entered March 18, 2004, which granted defendants' motions for summary judgment dismissing the complaint, and from so much of an order of the same court, entered July 30, 2004, granting plaintiff's motion for reargument as, upon reargument, adhered to the original decision.
Order entered July 30, 2004 insofar as appealed from unanimously affirmed without costs.
Before: PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
Appeal from order entered March 18, 2004 unanimously dismissed.
The affirmed medical report submitted by defendant Terracciano's doctor in support of defendants' motions for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). He stated that there was no limitation of motion of plaintiff's cervical and lumbar spines. His diagnosis was resolved cervical and thoracic sprain/strain. This shifted the burden to plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
The plaintiff unsuccessfully opposed the motion. The report of the plaintiff's chiropractor was not in affidavit form and, therefore, was without probative value ( see Kunz v. Gleeson, 9 AD3d 480). In any event, his qualitative assessment of plaintiff's limitation of motion was not supported by objective medical proof ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350).
An order granting reargument and adhering to the original decision supersedes the original order ( Dennis v. Stout, 24 AD2d 461; Weinstein-Korn-Miller, NY Civ Prac ¶ 5517.01). Accordingly, the appeal from the March 18, 2004 order is dismissed.