HOLMES v. HANSON (2001)

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Carter, J.), dated March 27, 2000, which granted the motion of the defendant Mary Ann Hanson, and the separate motion of the defendants Sunrise Limousine and Henry Attias, for summary judgment dismissing the complaint insofar as asserted against them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) an order of the same court, dated August 15, 2000, which denied her motion, in effect, for reargument.

ORDERED that the appeal from the order dated August 15, 2000, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated March 27, 2000, is affirmed;  and it is further,

ORDERED that the respondents appearing separately and filing separate briefs are awarded one bill of costs.

 In support of the motions for summary judgment, the defendants submitted evidence that the plaintiff was suffering from degenerative disc disease and an associated degenerative disc bulge at C5-6, which was not related to any trauma.   They also submitted the probative medical reports of an orthopedist and a neurologist prepared over three years after the subject accident which, upon physical examination, indicated that the plaintiff had suffered cervical and lumbar sprains, that the range of motion in her cervical and lumbar spines was good, and that she was not suffering from an orthopedic or neurological disability.   Thus, the defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see, Duldulao v. City of New York, 284 A.D.2d 296, 725 N.Y.S.2d 380;  Villalta v. Schechter, 273 A.D.2d 299, 300, 710 N.Y.S.2d 87;  Nisnewitz v. Renna, 273 A.D.2d 210, 709 N.Y.S.2d 435;  Guzman v. Michael Mgt., 266 A.D.2d 508, 698 N.Y.S.2d 719;  Kosto v. Bonelli, 255 A.D.2d 557, 681 N.Y.S.2d 293).

 The evidence submitted by the plaintiff in opposition was insufficient to defeat the defendants' motions for summary judgment.   The affirmation of the plaintiff's treating chiropractor did not constitute competent evidence (see, Kowalsky v. Khan, 279 A.D.2d 556, 719 N.Y.S.2d 666;  Cubero v. DiMarco, 272 A.D.2d 430, 708 N.Y.S.2d 324;  Garvey v. Riela, 272 A.D.2d 519, 708 N.Y.S.2d 148).   Furthermore, the plaintiff's self-serving affidavit was without probative value (see, Young v. Ryan, 265 A.D.2d 547, 697 N.Y.S.2d 150;  Rum v. Pam Transp., 250 A.D.2d 751, 673 N.Y.S.2d 178).

 The plaintiff's motion, denominated as one for renewal, was based on her treating chiropractor's affidavit.   The chiropractor's opinion was known and available to the plaintiff at the time the original motions for summary judgment were made, and the plaintiff did not offer a reasonable excuse for her failure to submit the affidavit in opposition to the original motions.   Therefore, the plaintiff's motion was, in effect, one for reargument, the denial of which is not appealable (see, Baciu v. City Univ. of New York, 283 A.D.2d 447, 724 N.Y.S.2d 886;  Muro v. Bay Ready Mix & Supplies, 282 A.D.2d 584, 723 N.Y.S.2d 673;  Privitera v. City of New York, 277 A.D.2d 367, 716 N.Y.S.2d 101;  Nisnewitz v. Renna, 273 A.D.2d 210, 709 N.Y.S.2d 435).

RITTER, J.P., GOLDSTEIN, FRIEDMANN, FEUERSTEIN and CRANE, JJ., concur.