GUEVARA v. BAGINSKI (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 18, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Ovidia Guevara did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2), as limited by their brief, from so much of an order of the same court dated December 16, 2005, as denied that branch of their motion which was for leave to renew.

ORDERED that the order dated October 18, 2005, is reversed, on the law, and the motion for summary judgment dismissing the complaint on the ground that the plaintiff Ovidia Guevara did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied;  and it is further,

ORDERED that the appeal from the order dated December 16, 2005, is dismissed as academic;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

Contrary to the plaintiffs' assertion, the defendants established good cause for their delay in making their motion for summary judgment (see CPLR 3212 [a];  Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431).   However, on the merits of their motion, the defendants failed to establish, prima facie, that the plaintiff Ovidia Guevara (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The medical reports proffered in support of the defendants' motion were one and two years old at the time the defendants moved for summary judgment.   In the interim, the plaintiff had further medical treatment that was not addressed in the defendants' reports.   Moreover, the conclusions made therein were not supported by objective medical findings.

In light of our determination on the appeal from the order dated October 18, 2005, the appeal from the order dated December 16, 2005 has been rendered academic.