KUNZ v. GLEESON

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

Kenneth KUNZ, appellant, v. Patricia GLEESON, respondent.

Decided: July 30, 2004

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Gerald Gardner Wright, P.C., & Associates, Hempstead, N.Y., for appellant. Lewis Johs Avallone Aviles & Kaufman LLP, Melville, N.Y. (Ann K. Kandel of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated August 14, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in entertaining the defendant's motion for summary judgment, which was made about two weeks beyond the deadline fixed by the court when it certified the action ready for trial.   The defendant demonstrated good cause for her slight delay by explaining that the independent medical examinations of the plaintiff were not conducted until after the note of issue had been filed, and that the results of these examinations provided the evidentiary basis for her motion for summary judgment (see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203;   Luciano v. Apple Maintenance & Servs., 289 A.D.2d 90, 734 N.Y.S.2d 153;   Jerry v. New York City Hous. Auth., 285 A.D.2d 531, 728 N.Y.S.2d 497;  cf. Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431).

 Furthermore, the Supreme Court properly granted the defendant's motion for summary judgment.   The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of the affirmed medical reports of the physicians who conducted the independent medical examinations, as well as the plaintiff's deposition testimony (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;  Hodges v. Jones, 238 A.D.2d 962, 661 N.Y.S.2d 159).   The affirmation of the plaintiff's physician submitted in opposition to the motion failed to identify any limitations in movement, impairments, or disabilities suffered as a result of the plaintiff's injuries.   The report of the plaintiff's chiropractor was not in affidavit form, and therefore was without probative value (see Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201;  Rum v. Pam Transp., 250 A.D.2d 751, 673 N.Y.S.2d 178).

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