Opinion
March 23, 1998
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order dated February 10, 1997, is affirmed; and it is further,
Ordered that the appeal from the order dated July 25, 1997, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the respondent is awarded one bill of costs.
In support of her motion for summary judgment the defendant submitted, inter alia, the affirmed report of the physician who examined the plaintiff's decedent on the defendant's behalf which concluded, in effect, that the plaintiff's decedent did not suffer a serious injury as that term is defined in the Insurance Law. The plaintiff's opposition thereto failed to raise a triable question of fact on the issue ( see, Gaddy v. Eyler, 79 N.Y.2d 955; Licari v. Elliot, 57 N.Y.2d 230). The affidavit submitted by the former physical therapist of the plaintiff's decedent did not indicate what, if any, objective medical tests were performed to conclude that the plaintiff's decedent suffered loss of cervical range of motion ( see, Lincoln v. Johnson 225 A.D.2d 593, 594; Giannakis v. Paschilidou, 212 A.D.2d 502, 503; Antoniou v. Duff, 204 A.D.2d 670). Moreover, the therapist last treated the plaintiff's decedent more than one year before he died ( see, Schultz v. Von Voight, 216 A.D.2d 451, 452, affd 86 N.Y.2d 865; Philpotts v. Petrovic, 160 A.D.2d 856). Under these circumstances, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint ( see, Gaddy v. Eyler, supra).
The Supreme Court also properly denied the plaintiff's motion denominated as one for renewal and reargument. Inasmuch as this motion was not based upon new evidence which was unavailable upon the original motion, and the plaintiff failed to offer any excuse as to why the evidence was not submitted at that time, the motion was actually one for reargument, the denial of which is not appealable ( see, Schumann v. City of New York, 242 A.D.2d 616, McLean v. Huntington Hosp., 227 A.D.2d 533; Fucci v. Town of Oyster Bay, 170 A.D.2d 646).
Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.