DINARDO v. YESHIVA KEHILATH YAKOV INC (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated October 25, 2019.  The order granted the defendants’ motion for leave to reargue their prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, which had been denied in an order of the same court dated July 18, 2019, and, upon reargument, in effect, vacated the order dated July 18, 2019, and thereupon, granted the prior motion.

ORDERED that the order dated October 25, 2019, is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident that occurred on December 17, 2014.  The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.  By order dated July 18, 2019, the Supreme Court denied the motion.

Thereafter, the defendants moved for leave to reargue their motion for summary judgment dismissing the complaint.  By order dated October 25, 2019, the Supreme Court granted the defendants leave to reargue, and, upon reargument, in effect, vacated the order dated July 18, 2019, and thereupon, granted the defendants’ motion for summary judgment dismissing the complaint.  The plaintiff appeals.

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in granting reargument of the defendants’ motion for summary judgment dismissing the complaint (see CPLR 2221[d];  Coke–Holmes v. Holsey Holdings, LLC, 189 A.D.3d 1162, 1164, 139 N.Y.S.3d 227;  Carrion v. 162 Pulaski, LLC, 117 A.D.3d 767, 768, 986 N.Y.S.2d 164).

Further, upon reargument, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.  The defendants met their prima facie burden of 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 Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).  The defendants submitted competent medical evidence establishing, prima facie, that the plaintiff's alleged injuries were not caused by the subject accident (see Cavitolo v. Broser, 163 A.D.3d 913, 914, 81 N.Y.S.3d 188;  Anderson v. Foley, 162 A.D.3d 965, 966, 78 N.Y.S.3d 417;  see also Pommells v. Perez, 4 N.Y.3d 566, 580, 797 N.Y.S.2d 380, 830 N.E.2d 278).

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's experts failed to address the findings of the defendants’ experts that alleged injuries to the cervical and lumbar regions of the plaintiff's spine, his left shoulder, his right wrist, and his right knee were all degenerative in nature (see Amirova v. JND Trans, Inc., 206 A.D.3d 601, 602, 167 N.Y.S.3d 410;  Holmes v. Parkinson, 186 A.D.3d 1619, 1619, 129 N.Y.S.3d 822;  Sylvain v. Maurer, 165 A.D.3d 1203, 1204, 85 N.Y.S.3d 203;  Cavitolo v. Broser, 163 A.D.3d at 914, 81 N.Y.S.3d 188).  With respect to an alleged hernia, the Supreme Court correctly determined that the plaintiff's evidence on this issue was ambiguous and failed to address findings by one of the defendants’ experts that the pre-existing hernia, which was identified at least three years prior to the subject accident, was not causally related to the subject accident.

MILLER, J.P., CHRISTOPHER, WARHIT and VOUTSINAS, JJ., concur.