CAMPBELL v. CLOVERLEAF TRANSPORTATION INC (2004)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 26, 2002, which, insofar as appealable, denied plaintiffs' motion to renew defendants' motion for summary judgment dismissing the complaint for lack of serious injuries as required by Insurance Law § 5102(d), unanimously reversed, on the law and the facts, without costs, renewal granted and, upon renewal, defendants' motion for summary judgment granted as against plaintiffs James and Brenda Campbell and Bocachica, and denied as against plaintiffs Wilson-Johnson and Johnson.

 Given a showing of law office failure by plaintiffs and no showing of prejudice by defendants, plaintiffs' failure to submit their medical proof in evidentiary form on the original motion should have been excused, and the motion for summary judgment decided on the basis of the record made on renewal (see Cespedes v. McNamee, 308 A.D.2d 409, 764 N.Y.S.2d 818).   On that record, an issue of fact as to whether plaintiff Wilson-Johnson sustained a serious injury is raised by her physician's affidavit, which, inter alia, correlates a 20% loss of range of motion in the cervical spine found some two and a half years after the accident to herniated discs described in the report of an MRI taken some two weeks after the accident, characterizes these herniations as “traumatic” and “significant” and opines that they were caused by the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   In contrast, the physician's affidavits submitted on behalf of plaintiffs Campbell and Bocachica do not sufficiently establish that they sustained serious injuries within the meaning of the statute.