OTERO v. Felix A. Rodriguez, et al., Defendants-Respondents-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

Richard OTERO, et al., Plaintiffs-Appellants-Respondents, v. 971 ONLY U, INC., et al., Defendants-Respondents, Felix A. Rodriguez, et al., Defendants-Respondents-Appellants.

Decided: January 09, 2007

TOM, J.P., FRIEDMAN, NARDELLI, CATTERSON, MALONE, JJ. Law Office of Scott B. Schwartz, PLLC, New York (Scott B. Schwartz of counsel), for appellants-respondents. Marjorie E. Bornes, New York, for respondents-appellants. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered February 2, 2006, which, to the extent appealable, denied plaintiffs' motion to renew a prior ruling dated September 21, 2005, granting a motion by defendants 971 Only U and Drame for summary judgment dismissing the complaint, and restored to active status the claims against defendants Rodriguez and Garcia, unanimously modified, on the law, that portion of the order restoring the claims against Rodriguez and Garcia to active status vacated, and otherwise affirmed, without costs.

Plaintiffs failed to set forth any new facts not offered on the prior motion that would change the prior determination (CPLR 2221[e][2] ).   Even assuming they had presented new facts that were previously unavailable, they failed to demonstrate that plaintiff Richard Otero suffered a serious injury as defined by Insurance Law § 5102(d).  Plaintiffs' submission failed to explain a gap in treatment of more than a year, which is fatal to a claim of serious injury (Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).

Furthermore, the medical submissions failed to specify what objective tests, if any, were performed, to explain the significance of the findings of a positive straight-leg-raising test, or to set forth objective findings of either a specific percentage of the loss of range of motion or sufficient description of the qualitative nature of the limitations based on the normal function, purpose and use of the body part (Vasquez v. Reluzco, 28 A.D.3d 365, 814 N.Y.S.2d 117 [2006] ).   The submissions also failed to meet the statutory test of demonstrating an inability to perform substantially all of the material acts that constitute the injured plaintiff's usual and customary daily activities for 90 of the 180 days following the accident, to establish a causal connection between the MRI findings and the accident (Smith v. Brito, 23 A.D.3d 273, 804 N.Y.S.2d 82 [2005] ), or to discuss the degenerative changes that the MRI revealed (Mullings v. Huntwork, 26 A.D.3d 214, 810 N.Y.S.2d 443 [2006] ).

Without establishing a serious injury, plaintiffs have no basis for proceeding against any of defendants.