ESTEBAN v. DUBUISSON (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Gina Abadi, J.), dated December 6, 2023, and (2) an order of the same court dated March 21, 2024.  The order dated December 6, 2023, insofar as appealed from, granted the defendants' 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.  The order dated March 21, 2024, denied the plaintiff's motion for leave to renew his opposition to the defendants' 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.

ORDERED that the order dated December 6, 2023, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated March 21, 2024, is affirmed;  and it is further,

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

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident.  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 accident.  In an order dated December 6, 2023, the Supreme Court, inter alia, granted the defendants' motion.  The plaintiff thereafter moved for leave to renew his opposition to the defendants' prior motion.  In an order dated March 21, 2024, the court denied the plaintiff's motion.  The plaintiff appeals from both orders.

The Supreme Court properly granted the defendants' 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 accident.  The defendants' medical evidence established, prima facie, that the alleged injuries to the plaintiff's left knee and to the cervical and lumbar regions of the plaintiff's spine were degenerative, preexisting, and not caused by the accident (see Amirova v. JND Trans, Inc., 206 A.D.3d 601, 602, 167 N.Y.S.3d 410;  Gash v. Miller, 177 A.D.3d 950, 111 N.Y.S.3d 200;  Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607).  In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff's contention, his expert failed to address the findings of the defendants' experts that the alleged injuries were degenerative in nature and not caused by the accident (see Amirova v. JND Trans, Inc., 206 A.D.3d at 602, 167 N.Y.S.3d 410;  Mnatcakanova v. Elliot, 174 A.D.3d 798, 800, 106 N.Y.S.3d 112;  Zavala v. Zizzo, 172 A.D.3d 793, 794, 99 N.Y.S.3d 354;  Cavitolo v. Broser, 163 A.D.3d 913, 914, 81 N.Y.S.3d 188).

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination ․ and shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][2], [3];  see Clerveaux v. Kensington Ins. Co., 234 A.D.3d 665, 226 N.Y.S.3d 112).  “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Clerveaux v. Kensington Ins. Co., 234 A.D.3d at 666, 226 N.Y.S.3d 112 [internal quotation marks omitted]).

Here, the plaintiff moved for leave to renew his opposition to the defendants' prior motion based on an amended, affirmed report from his expert.  However, the expert's amended report addressed medical evidence and expert opinions known to the plaintiff when he opposed the defendants' motion, and the plaintiff failed to offer a reasonable justification for his failure to submit an expert report addressing this evidence in his opposition to the defendants' motion.  Thus, the Supreme Court properly denied the plaintiff's motion for leave to renew his opposition to the defendants' prior motion (see Clerveaux v. Kensington Ins. Co., 234 A.D.3d 665, 226 N.Y.S.3d 112;  Aurora Loan Servs., LLC v. Moreno, 232 A.D.3d 673, 674–675, 222 N.Y.S.3d 560;  Hernandez v. Nwaishienyi, 148 A.D.3d 684, 687, 48 N.Y.S.3d 467).

We need not reach the parties' remaining contentions in light of our determination.

GENOVESI, J.P., MILLER, DOWLING and MCCORMACK, JJ., concur.