CHANTALE CHARLES CHANTALE CHARLES v. NAFTALI SCHMELZCER PIERRE EXUMA PIERRE BRUNEL (2026)

The following papers numbered 1—8 were read and considered in connection with (a) Defendants CONGREGATION YESHIVA AVIR YAKOV and NAFTALI SCHMELZCER's Notice of Motion (Motion Seq. No. 3) for an Order, pursuant to Civil Practice Law and Rules § 3212, granting them summary judgment and dismissing the Complaint as to Plaintiff CHANTALE CHARLES, individually, based upon this Court's Decision and Order dated April 13, 2026, which determined that this Plaintiff did not sustain a "serious injury" as defined by Insurance Law § 5102(d); and (b) Plaintiffs' Notice of Motion (Motion Seq. No. 4) for an Order, pursuant to Civil Practice Law and Rules § 2221(e), granting leave to renew that portion of Plaintiffs' opposition to Defendants PIERRE T. EXUMA and PIERRE BRUNEL's motion for summary judgment (Motion Seq. No. 2) concerning Plaintiff CHANTALE CHARLES and, upon renewal, denying that motion as to this Plaintiff; and for such other and further relief as the Court deems just and proper

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 3) / Affirmation of Alexandra Bystritskaya,

Esq. / Exhibits A—C 1

Notice of Motion (Motion Seq. No. 4) / Affirmation of Reuven J. Epstein, Esq. /Exhibits A—D 2

Affirmation of Alexandra Bystritskaya, Esq. in Opposition (Motion Seq. No. 4) /Exhibits A—B 3

Affirmation of Reuven J. Epstein, Esq. in Opposition (Motion Seq. No. 3) /

Exhibits A—C 4

Reply Affirmation of Reuven J. Epstein, Esq. (Motion Seq. No. 4) 5

Affirmation of Carol S. DiBari, Esq. in Opposition (Motion Seq. No. 4) 6

Affirmation of Paul Hofmann, Esq. in Reply (Motion Seq. No. 3) / Exhibit A 7

Reply Affirmation of Reuven J. Epstein, Esq. (Motion Seq. No. 4) 8

PROCEDURAL HISTORY

This personal injury action arises out of a November 18, 2021, collision on Route 45 in the Town of Ramapo between a 2016 Toyota owned by Defendant PIERRE T. EXUMA (hereinafter EXUMA) and operated by Defendant PIERRE BRUNEL (hereinafter BRUNEL), in which Plaintiffs were passengers, and a school bus owned by Defendant CONGREGATION YESHIVA AVIR YAKOV (hereinafter CONGREGATION) and operated by Defendant NAFTALI SCHMELZCER (hereinafter SCHMELZCER). The full procedural history through April 2026 is set forth in this Court's Decision and Order dated April 13, 2026 (see NYSCEF Doc. No. 130) (the "April 2026 Order") and is repeated here only as needed.

On November 11, 2025, CONGREGATION and SCHMELZCER moved for summary judgment on liability and for partial summary judgment dismissing the infant Plaintiff J.S.P.'s claims on serious injury grounds (Motion Seq. No. 1). The same day, EXUMA and BRUNEL moved for summary judgment dismissing the Complaint on the ground that neither Plaintiff sustained a serious injury (Motion Seq. No. 2). CONGREGATION and SCHMELZCER later filed a Supplemental Affirmation adopting EXUMA and BRUNEL's serious injury arguments and seeking the same relief.

Plaintiffs' February 10, 2026, opposition to Motion Seq. No. 2 did not annex medical records for CHANTALE. See NYSCEF Doc. Nos. 108—110. On February 19, 2026, the return date and after Defendants had served reply papers, Plaintiffs filed, without leave of Court or consent, an "amended" opposition annexing a Certification of Business Records from Golden Healthcare Chiropractic Diagnostic P.C. and a bulk filing of CHANTALE's medical records, accompanied by counsel's letter invoking CPLR 2001. See NYSCEF Doc. Nos. 120—125. Defendants objected. See NYSCEF Doc. Nos. 126—128.

In the April 2026 Order, the Court found that the late-filed medical records would prejudice Defendants because they were submitted after the time for Defendants to respond and declined to consider them. See NYSCEF Doc. No. 130. The Court denied CONGREGATION and SCHMELZCER's motion as to liability, granted their motion as to the infant Plaintiff, and granted EXUMA and BRUNEL's motion as to serious injury in its entirety. As to CHANTALE, the Court found that EXUMA and BRUNEL established their prima facie entitlement to judgment through the affirmed reports of Dr. Hugh Selznick, an orthopedist, and Dr. Scott A. Springer, a radiologist, and that Plaintiffs failed to raise a triable issue of fact because they submitted no medical records or physician affirmations as to her. The Court did not address the request in CONGREGATION and SCHMELZCER's Supplemental Affirmation filed as a "Sur-Reply," as leave of Court was not granted for same despite counsel submitting a letter requesting same. See NYSCEF Doc. Nos. 126-127. EXUMA and BRUNEL served the April 2026 Order with notice of entry on April 14, 2026. See NYSCEF Doc. No. 132.

At the May 11, 2026, conference, the Court granted CONGREGATION and SCHMELZCER leave to move, on or before June 10, 2026, for summary judgment dismissing CHANTALE's claims against them based on the April 2026 Order. They filed Motion Seq. No. 3 on June 9, 2026. Plaintiffs filed Motion Seq. No. 4 on June 26, 2026.

ARGUMENTS

Plaintiff's Motion to Renew (Motion Seq. No. 4)

Plaintiffs contend that the omission of CHANTALE's certified records from their February 10, 2026, opposition was inadvertent law office failure. They submit the affirmation of Jared Viders, Esq., an attorney who drafted the opposition papers as an independent contractor for Plaintiff's counsel, Reuven Epstein, Esq., while Attorney Epstein was out of state. See NYSCEF Doc. No. 144, Exhibit B. The affirmation asserts that Attorney Viders has no recollection of checking NYSCEF to confirm the filing was complete after it was submitted to NYSCEF. See NYSCEF Doc. No. 144, Exhibit B. The Plaintiff also submits the affirmation of office manager Christine DiGaetano, who states that the firm's paralegal told her upon inquiry as to the status of Plaintiff's prior motion filing that "everything was all set." See NYSCEF Doc. No. 145, Exhibit C. In support of their argument that the newly submitted papers, which were excluded from the prior motion for summary judgment, the Plaintiff relies on, among other cases, Defina v Daniel, (140 AD3d 825 [2d Dept 2016]), and Koufalis v Logreira, (102 AD3d 750 [2d Dept 2013]), and argue that the papers filed with their instant motion to renew should be considered by the Court since the Defendants suffer no prejudice because they already possessed the records.

On the merits, Plaintiffs annex the certified Golden Healthcare records (see NYSCEF Doc. No. 146, Exhibit D) and argue that the records show significant, measured range of motion limitations in CHANTALE's cervical spine, lumbar spine, and both shoulders from November 2021 through May 2022; EMG findings of right C6 and right S1 radiculopathy; MRI findings of cervical herniations, a lumbar bulge, shoulder pathology, and a left knee hamstring tear; and a contemporaneous notation by Anthony Manoy, D.C., of a "direct causal relationship" between the accident and her symptoms. See NYSCEF Doc. No. 146, Exhibit D. In reply, Plaintiffs argue that a recent examination and an explanation for the cessation of treatment are not required under the significant limitation category, and that CONGREGATION and SCHMELZCER's opposition should be disregarded as not affirmed in the form prescribed by Civil Practice Law and Rules § 2106. Plaintiffs expressly disclaim any request for reargument under Civil Practice Law and Rules § 2221(d).

CONGREGATION and SCHMELZCER oppose, arguing that the records are not "new facts" because they were filed on February 19, 2026, and rejected; that the motion is, in substance, an untimely motion to reargue; and that the records contain no affirmed opinion on causation. EXUMA and BRUNEL oppose, arguing that Plaintiffs did not exercise due diligence because the records were known and available when the original opposition was due, and that the records do not raise a triable issue because CHANTALE ceased all treatment in August 2022 and there is no recent examination. See Renna v Gullo, 19 AD3d 472 [2d Dept 2005].

Defendant CONGREGATION and SCHMELCZER's Motion for Summary Judgment (Motion Seq. No. 3)

CONGREGATION and SCHMELZCER argue that this Court's April 2026 Order's determination that CHANTALE did not sustain a serious injury is the "law of the case" and binds all parties, and that a plaintiff who cannot meet the threshold against one defendant cannot meet it against another. See Wright v Rodriguez, 49 AD3d 532 [2d Dept 2008]; See also Acevedo v Grayline NY Tours, Inc., 204 AD3d 597 [1st Dept 2022].

Plaintiffs respond that the doctrine of "law of the case" does not apply because the Court never evaluated CHANTALE's medical records, and that it would be rendered moot if renewal is granted and Motion Seq. No. 2 is denied as to her. See Valdez v Classic Hauling, LLC, 233 AD3d 959 [2d Dept 2024]. Plaintiffs also submit, for the first time, the affirmation of Dr. Manoy describing an August 6, 2026 (see NYSCEF Doc. No. 154, Exhibit B), examination, with range of motion findings and opinions on causation, permanency, degeneration, and the cessation of treatment; and the affirmation of Michael C. Russonella, D.O. (see NYSCEF Doc. No. 155, Exhibit C), who performed CHANTALE's April 25, 2022, right shoulder arthroscopy and opines that the surgery and his postoperative diagnoses are causally related to the accident. In reply, CONGREGATION and SCHMELZCER argue that Plaintiffs may not relitigate the threshold issue through opposition to this motion.

DISCUSSION

I. PLAINTIFF'S MOTION TO REARGUE (MOTION SEQ. NO. 4)

A. The Objection pursuant to Civil Practice Law and Rules § 2106

Plaintiffs ask the Court to disregard CONGREGATION and SCHMELZCER's opposition because counsel's affirmation omits the statements, required by Civil Practice Law and Rules § 2106 as amended effective January 1, 2024, with the inclusion of language "that the penalties of perjury may include a fine or imprisonment and that the document may be filed in a court proceeding." The Court declines. The omission is a defect that may be disregarded where no substantial right is prejudiced. See Civil Practice Law and Rules § 2001; see also Kallo v Kane St. Synagogue, 241 AD3d 522 [2d Dept 2025]. Plaintiffs identify no prejudice, the affirmation consists of legal argument by counsel, and it incorporates the opposition of EXUMA and BRUNEL, which is in proper form. The result reached below would be the same without it.

B. Reargument pursuant to Civil Practice Law and Rules § 2221(d)(3)

To the extent Plaintiffs' motion may be read as seeking reargument, it is DENIED. A motion for leave to reargue must be made within thirty (30) days after service of the order with notice of entry. See Civil Practice Law and Rules § 2221(d)(3). Notice of entry was served on April 14, 2026, and this motion was not made until June 26, 2026. See NSYCEF Doc. Nos. 130 and 131; See also NYSCEF Doc. Nos. 141-147. Moreover, Plaintiffs do not identify any matter of fact or law the Court overlooked or misapprehended. See Civil Practice Law and Rules § 2221(d)(2). Plaintiffs, in reply, expressly disclaim reargument (see NYSCEF Doc. No. 156, ¶ 9), and the motion is properly treated as one to renew, because it rests on evidence the Court did not consider.

C. Motion for Leave to Renew pursuant to Civil Practice Law and Rules § 2221(e)

A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must contain reasonable justification for the failure to present those facts on the prior motion. See Civil Practice Law and Rules § 2221(e)(2), (3). Renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. See Renna v Gullo, 19 AD3d 472 [2d Dept 2005]. The Court nonetheless has discretion to grant renewal on facts known to the movant at the time of the original motion, and law office failure may constitute a reasonable justification for those facts not been presented previously. See Defina v Daniel, 140 AD3d 825 [2d Dept 2016].

The Court rejects CONGREGATION and SCHMELZCER's contention that the Golden Healthcare records cannot be "new facts" because they were filed on February 19, 2026. The April 2026 Order expressly declined to consider those records and did not evaluate their contents since the Plaintiff's counsel had merely uploaded them after filing their motion and made no application nor obtain leave of court to file same in that manner. See NYSCEF Doc. Nos. 130 and 131. Facts contained in documents the Court rejected for consideration on the prior motion may support renewal. See Defina, 140 AD3d at 826.

The Court also finds reasonable justification for Plaintiff's failure to provide the facts on the prior motion. The Viders and DiGaetano affirmations describe a filing error during Plaintiff's counsel's absence from the State, not a strategic choice. The custodian's certification for the Golden Healthcare records is dated in February 2026, which indicates that the records were assembled for the original opposition, and Plaintiffs attempted to file them within days of learning of the omission. See NYSCEF Doc. No. 146, p. 1. The prejudice that led the Court to disregard the February 19, 2026, filing — that Defendants had no opportunity to respond — has now been cured: both sets of Defendants have had a full opportunity to address the records and have done so on the merits. Under these circumstances, the Court exercises its discretion to grant leave to renew so that CHANTALE's claim is evaluated on her medical proof. Nothing in this determination should be read as approving the manner in which Plaintiffs' opposition papers were assembled and filed.

D. Court's Determination Upon Renewal

This Court's April 2026 Order determined that Defendants EXUMA and BRUNEL established their prima facie entitlement to judgment as to CHANTALE through the affirmed reports of Dr. Selznick and Dr. Springer. See NYSCEF Doc. No. 130 and 131. In their new motion Plaintiffs do not challenge that determination. Therefore, the question on renewal is therefore whether the Golden Healthcare records now before the Court raise a triable issue of fact as to whether CHANTALE sustained a serious injury causally related to the accident. See Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; See also Pommells v Perez, 4 NY3d 566 [2005]. The Court finds that they do not.

1. Scope of the certified records. The custodian's certification on the Golden Healthcare records, completed by an employee of Golden Healthcare Chiropractic Diagnostic, attests only to records "made by the personnel or staff of the business, or persons acting under their control..." See NYSCEF Doc. No 146, p 1. It therefore only covers Golden Healthcare's own examination notes, range of motion measurements, and EMG studies. It does not cover the MRI reports of Medaid Radiology, LLC of Dr. Meyerson (see NYSCEF Doc. No. 146, p 173-184), RIMED records signed by Joseph Izzo. M.D. (see NYSCEF Doc. No. 170), and records of Sans L. Bloch, M.D. (see NYSCEF Doc. No. 161-163) included in the same exhibit, which Plaintiffs concede are unsworn. See NYSCEF Doc. No. 146, p. 79; See also NYSCEF Doc. No. 152, n 1. The Court has nevertheless considered the entire exhibit but the result is the same.

2. Permanent consequential limitation. The renewal record contains no examination after 2022 and no opinion by any of the physicians that examined CHANTALE that any condition is permanent. The record therefore cannot support a claim under the permanent consequential limitation category, and Plaintiffs' reply relies on the significant limitation category alone. See NYSCEF Doc. No. 161, ¶¶ 27—33.

3. Significant limitation — causation.The Golden Healthcare records (see NYSCEF Doc. No. 146) contain measured limitations in range of motion of CHANTALE's cervical and lumbar spine and both shoulders between November 2021 and May 2022. They do not, however, raise a triable issue as to causation. The Independent Medical Examination of Dr. Springer reviewed CHANTALE's MRI films and concluded, among other things, that the cervical disc desiccation from C2-3 through C7-T1 reflects degenerative disc disease and that the cervical herniations, cervical bulge, and lumbar bulge are degenerative in origin; that the hypertrophic changes of both acromioclavicular joints are degenerative or chronic; that the tendinosis in both shoulders, and the supraspinatus tear in the right shoulder, are chronic findings that could not have developed in the interval between the accident and the studies; and that none of the studies shows posttraumatic change. See NYSCEF Doc. No. 96. The Medicaid reports (for which there is no certification) on which Plaintiffs rely themselves describe acromioclavicular and glenohumeral arthrosis in both shoulders. See NYSCEF Doc. NO. 146.

Where a defendant presents evidence that a plaintiff's claimed injuries are degenerative or preexisting, the plaintiff must come forward with evidence addressing that showing; otherwise, a conclusion that the injuries were caused by the accident is speculative. See Pommells, 4 NY3d 566. Nothing in the renewal record addresses Dr. Springer's findings. The only references to causation are a notation in the Assessment section in the November 22, 2021, intake form that there is a "direct causal relationship" between the history given and the presenting symptoms (see NYSCEF Doc. No. 146, p. 150), and a form "Excuse Notes" stating that CHANTALE was being treated for injuries from a motor vehicle accident (see NYSCEF Doc. No. 146, p. 157-158). See NYSCEF Doc. No. 146. Both were completed before any MRI was performed, neither considers the imaging findings, and neither explains its basis. Such conclusory assertions are insufficient to raise a triable issue of fact. See Franchini v Palmieri, 1 NY3d 536 [2003].

Additionally, the documentation of the right shoulder surgery done on April 25, 2022, does not alter this Court's conclusion. See NYSCEF Doc. No. 155. The operative report in the renewal record, which is dated April 25, 2022, contains no statement or opinion from the surgeon or any other physician linking the surgery to the accident rather than to the chronic conditions Dr. Springer identified. Rather, Plaintiff includes an affirmation of Dr. Russonella dated August 11, 2026, which is after the date the Plaintiff's initial opposition to Defendant's motion was due, and includes a conclusory statement that now causally relates the surgery to the November 18, 2021, accident. See NYSCEF Doc. No. 155. In addition, CHANTALE testified that her treatment ended in August 2022 (see NYSCEF Doc. Nos. 97-99), and nothing in the renewal record explains the cessation of treatment, which further undermines any inference of causation. See Pommells, 4 NY3d 566.

90/180-day category. The renewal record adds nothing on this category. CHANTALE testified that she worked an eight (8) hour shift the day after the accident, worked the following weekend, was confined to bed and home for one day, and continued working full-time until her April 2022 surgery. See NYSCEF Doc. Nos. 97-99.

Because the renewal evidence would not change the prior determination, the Court, upon renewal, adheres to so much of the April 2026 Order as granted EXUMA and BRUNEL summary judgment dismissing the Complaint insofar as asserted by CHANTALE. Plaintiffs' motion does not seek renewal as to the infant Plaintiff J.S.P., and that portion of the April 2026 Order is unaffected.

II. DEFENDANTS CONGREGATION AND SCHMELZCER'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF CHANTALE (MOTION SEQ. NO. 3)

The motion is properly before the Court. The Court granted CONGREGATION and SCHMELZCER leave at the May 11, 2026, conference, the motion was filed within the time the Court set, and it rests on a determination that did not exist until the April 2026 Order was issued. Plaintiffs raise no objection to the motion's timeliness.

The doctrine of the "law of the case" provides that once an issue is judicially determined, that determination ends the matter as far as judges and courts of coordinate jurisdiction are concerned. See Martin v City of Cohoes, 37 NY2d 162, 165 [1975]. It forecloses reexamination of an issue previously determined in the same action absent a showing of newly discovered evidence or a change in the law. See Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 116 AD3d 667, 669 [2d Dept 2014].

Whether CHANTALE sustained a serious injury is a question about CHANTALE, not about actions of any particular defendant. Her claims against all four (4) Defendants arise from the same accident and rest on the same injuries. The April 2026 Order resolved that question against her on the merits regarding whether she sustained a serious injury from the subject motor vehicle action after she had a full opportunity to oppose, and the Court has now considered her medical records on renewal and adhered to that determination. Where the threshold issue has been decided in favor of one defendant, summary judgment on the same issue may be awarded to the co-defendants. See Wright v Rodriguez, 49 AD3d 532 [2d Dept 2008]; See also Civil Practice Law and Rules § 3212(b).

Plaintiffs' arguments against applying the doctrine are unavailing. Their contention that the Court never considered CHANTALE's medical records has been resolved by the grant of their renewal motion and the Court consideration of those records. Their reliance on Valdez v Classic Hauling, LLC, (233 AD3d 959 [2d Dept 2024]), is misplaced. In Valdez, the dismissal of claims against co-defendants on law of the case grounds fell because the underlying serious injury determination was itself reversed. Here, the underlying determination stands.

The Court declines to consider the affirmations of Dr. Manoy and Dr. Russonella, submitted for the first time in opposition to this motion, as a basis for revisiting the threshold question. They are not newly discovered evidence and in fact are both dated on August 11, 2026, four (4) months after this Court's Decision and Order (April 13, 2026). See NYSCEF Doc. Nos. 154-155. Dr. Manoy treated CHANTALE from November 2021 into 2022, and his opinions concern injuries he observed and treated at that time, not the permanency of CHANTALE's injuries. Dr. Russonella performed the surgery in April 2022. Nothing prevented Plaintiffs from obtaining these affirmations for their February 2026 opposition to Defendants' motions (Motion Seq. Nos. 1 and 2) or from submitting them with their June 26, 2026, motion to renew (Motion Seq. No. 4), which instead rested on the Golden Healthcare records alone.

That Dr. Manoy re-examined CHANTALE on August 6, 2026, after the April 2026 Order and after the renewal motion was filed, does not make his opinions newly discovered; a new examination arranged in response to an adverse determination is not evidence that could not have been obtained earlier. Opposition to a co-defendant's motion is not a vehicle for a further renewal of a motion already decided, and considering these affirmations here would invite inconsistent determinations of a single, plaintiff-specific threshold question in the same action. The Court also notes that both affirmations are undated. Given its disposition, the Court need not reach whether those defects may be disregarded under Civil Practice Law and Rules § 2001. Accordingly, CONGREGATION and SCHMELZCER are entitled to summary judgment dismissing the Complaint insofar as asserted against them by CHANTALE.

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers, and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Plaintiffs' motion (Motion Seq. No. 4), to the extent it seeks leave to reargue, is DENIED; and it is further

ORDERED that Plaintiffs' motion (Motion Seq. No. 4) is otherwise GRANTED to the extent that leave to renew is granted and, upon renewal, the Court adheres to so much of its Decision and Order dated April 13, 2026, as granted Defendants PIERRE T. EXUMA and PIERRE BRUNEL's motion for summary judgment (Motion Seq. No. 2) dismissing the Complaint insofar as asserted by Plaintiff CHANTALE CHARLES, Individually; and it is further

ORDERED that Defendants CONGREGATION YESHIVA AVIR YAKOV and NAFTALI SCHMELZCER's motion for summary judgment (Motion Seq. No. 3) is granted, and the Complaint is dismissed insofar as asserted against them by Plaintiff CHANTALE CHARLES, Individually; and it is further

ORDERED that the cross-claims asserted by and between the Defendants (see NYSCEF Doc. No. 2) remain pending as neither party has sought dismissal of same; and it is further

ORDERED that Defendants are directed to appear before the undersigned on November 10, 2026 at 9:30 a.m. for a status conference as to the pending cross-claims.

The foregoing constitutes the Decision and Order of the Court as to Motion Seq. Nos. 3 and 4.

Dated: November 4, 2026

New City, New York

John P. Collins, Jr., J.