Opinion
Submitted February 23, 2000.
May 22, 2000.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated May 7, 1999, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), without prejudice to renewal at a time when the plaintiff is able to provide a medical affidavit.
Wallace D. Gossett, Brooklyn, N.Y. (Steve S. Efron and Ren of counsel), for appellants.
Mark Koval, Garden City, N.Y., for respondent.
Before: DANIEL W. JOY, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiff's motion for summary judgment without prejudice to renewal at a time when the plaintiff is able to provide a medical affidavit in opposition to such a motion. The plaintiff's incarceration at the time of the instant motion prevented him from being examined in order to provide a medical affidavit in opposition, and it appeared that the plaintiff was due to be released in a few months. As a result, the Supreme Court properly concluded the plaintiff could be examined upon his release, and, upon renewal of the motion, could submit the relevant material in opposition (see, CPLR 3212[f]; Urcan v. Cocarelli, 234 A.D.2d 537).
JOY, J.P., THOMPSON, GOLDSTEIN, and FEUERSTEIN, JJ., concur.