WALKER v. VILLAGE OF OSSINING

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

Mary L. WALKER, respondent, v. VILLAGE OF OSSINING, et al., appellants, et al., defendants.

Decided: May 31, 2005

HOWARD MILLER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and ROBERT A. LIFSON, JJ. Boeggeman, George, Hodges & Corde, P.C., White Plains, N.Y. (Paul Edward Svensson of counsel), for appellants. Carolyn V. Minter, Ossining, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants Village of Ossining and David M. Caputo appeal from an order of the Supreme Court, Westchester County (LaCava, J.), entered October 15, 2004, which granted the plaintiff's motion for leave to renew and reargue their prior motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and vacated its prior order dated June 30, 2004, granting their motion, and denied their motion.

ORDERED that the order is affirmed, with costs.

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew (see CPLR 2221[e];  Daniel Perla Assocs. v. Ginsberg, 256 A.D.2d 303, 681 N.Y.S.2d 316).

Further, reargument was appropriate since the appellants failed to make a prima facie showing, upon the original motion, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   One medical report submitted by the appellants was unaffirmed and therefore inadmissible (see Gleason v. Huber, 188 A.D.2d 581, 591 N.Y.S.2d 69;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692).   A second report, by an acupuncturist, who was not a medical doctor, was inadmissible since it was not in affidavit form (see CPLR 2106;  Norris v. Metropolitan Life Ins. Co., 116 Misc.2d 296, 457 N.Y.S.2d 673).   The remaining reports submitted by the appellants were insufficient to show the absence of a serious injury (see Black v. Robinson, 305 A.D.2d 438, 759 N.Y.S.2d 741;  see also Zavala v. DeSantis, 1 A.D.3d 354, 766 N.Y.S.2d 598;  Gamberg v. Romeo, 289 A.D.2d 525, 736 N.Y.S.2d 64;  Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897).   In light of the appellants' failure to establish a prima facie case, it becomes unnecessary to inquire into the sufficiency, or insufficiency, of the plaintiff's opposition (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

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