FUNG v. UDDIN

Reset A A Font size: Print

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

Francis FUNG, respondent, v. Mohammed Nasir UDDIN, et al., appellants, et al., defendants.

Decided: March 31, 2009

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, ANITA R. FLORIO, and RANDALL T. ENG, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants. Kenneth M. Mollins, Melville, N.Y. (Peter Citrin of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 30, 2008, as granted the plaintiff's motion for leave to reargue his opposition to their 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), which had been determined in an order dated December 11, 2007, and upon reargument, denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order dated June 30, 2008, is modified, on the law, by deleting the provision thereof which, upon reargument, denied the motion of the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision, upon reargument, adhering to the original determination in the order dated December 11, 2007, granting their motion for summary judgment dismissing the complaint insofar as asserted against them;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

Contrary to the contention of the defendants Mohammed Nasir Uddin and Ainos Taxi, Inc. (hereinafter the appellants), the Supreme Court providently exercised its discretion in granting reargument (see Luna v. Mann, 58 A.D.3d 699, 872 N.Y.S.2d 467;  E.W. Howell Co. Inc. v. S.A.F. LaSala Corp., 36 A.D.3d 653, 654, 828 N.Y.S.2d 212;  Pimentel v. Mesa, 28 A.D.3d 629, 813 N.Y.S.2d 517).   However, upon granting reargument, the Supreme Court erred in failing to adhere to its original determination granting the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

The appellants 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., 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).   In opposition to the appellants' showing in this regard, the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury to his cervical or lumbar spine under the categories of Insurance Law § 5102(d) requiring a plaintiff to establish a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.”   The plaintiff offered no competent medical evidence to demonstrate the existence of a significant range-of-motion limitation in his cervical or lumbar spine contemporaneous with the subject accident (see Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719;  Luizzi-Schwenk v. Singh, 58 A.D.3d 811, 872 N.Y.S.2d 176;  Leeber v. Ward, 55 A.D.3d 563, 865 N.Y.S.2d 614).   The plaintiff's medical records from St. Vincent's Hospital and Apple Chiropractic, P.C., were not competent proof of a contemporaneous injury because they were neither affirmed nor sworn (see Pompey v. Carney, 59 A.D.3d 416, 872 N.Y.S.2d 541;  Sapienza v. Ruggiero, 57 A.D.3d 643, 869 N.Y.S.2d 192;  Choi Ping Wong v. Innocent, 54 A.D.3d 384, 385, 864 N.Y.S.2d 435).   Furthermore, the affirmation of the plaintiff's former treating physician, Jeffrey Schwartz, was without probative value because he was no longer licensed to practice medicine at the time the affirmation was written (see CPLR 2106;  Worthy v. Good Samaritan Hosp. Med. Ctr., 50 A.D.3d 1023, 1024, 857 N.Y.S.2d 178;  McDermott v. New York Hosp.-Cornell Med. Ctr., 42 A.D.3d 346, 839 N.Y.S.2d 497).

The plaintiff also failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the accident (see Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d 719;  Roman v. Fast Lane Car Serv., Inc., 46 A.D.3d 535, 536, 846 N.Y.S.2d 613;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).

Copied to clipboard