Opinion
2013-2615 Q C
07-07-2015
Shahana Williams, Appellant, July 7, 2015 v. Sheila M. Richardson, Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered August 13, 2013. The order denied plaintiff's motion for leave to renew her opposition to defendant's prior motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, plaintiff's motion for leave to renew her opposition to defendant's prior motion for summary judgment dismissing the complaint is granted, and, upon renewal, defendant's motion for summary judgment dismissing the complaint is denied.
In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident in question (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition to the motion, plaintiff submitted, among other things, an affirmed report by a treating physician which stated that the physician was a "Diplomate American Board of Orthopaedic Surgery," and an affirmation by the same physician stating that he is a physician "specializing in the fields of Radiology and Nuclear Medicine." The Civil Court found that defendant had made a prima facie showing that plaintiff had not suffered a serious injury and that plaintiff had failed to raise a triable issue of fact in opposition, noting that plaintiff's treating physician's claim of different specialties belied his factual assertions and rendered his conclusions "suspicious and unreliable." Consequently, it granted defendant's motion for summary judgment.
Thereafter, plaintiff moved for leave to renew her opposition to defendant's motion for summary judgment. In support of the motion, plaintiff's attorney argued that the identification in the affirmation of plaintiff's treating physician as a radiologist was an unintentional clerical error. Plaintiff also submitted an affirmation by the physician attesting to this fact. The Civil Court denied plaintiff's motion, stating that the affirmation of plaintiff's doctor did not contain new facts in support of plaintiff's motion for leave to renew.
"[W]hile the affi[rmation] may not represent newly-discovered evidence . . . this circumstance does not disqualify the motion as one for leave to renew. The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification' for failing to present it on the prior motion (CPLR 2221 [e] [3])" ( Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391 [2008] [internal citations omitted]; see also Mollin v County of Nassau, 2 AD3d 600 [2003]; Clinton Place Med., P.C. v Country-Wide Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). In the present case, the explanation by plaintiff's doctor, that, due to clerical error, he had been identified in his prior affirmation as a radiologist instead of an orthopedist, constitutes a reasonable justification ( see Hackney v Monge, 103 AD3d 844 [2013]). Consequently, the branch of plaintiff's motion seeking leave to renew should have been granted.
Upon renewal, defendant's motion for summary judgment dismissing the complaint should have been denied, as plaintiff raised a triable issue of fact as to whether injuries to the lumbar region of her spine had been caused by the accident at issue and constituted serious injuries under the significant limitation of use and permanent consequential limitation of use categories of Insurance Law § 5102 (d). While the Civil Court based its decision on the affirmations by plaintiff's doctor concerning MRI studies of plaintiff's spine and shoulder, the same doctor provided an affirmed report which discussed in detail his examination of plaintiff approximately six years after the accident and set forth quantitative range-of-motion findings showing limitations in plaintiff's lumbosacral spine. Plaintiff also submitted an affirmation of another physician who had examined her approximately two weeks after the accident and reported, among other things, significant limitations in the lumbar region of plaintiff's spine that he opined were causally related to the accident. Furthermore, contrary to defendant's assertion, plaintiff adequately explained the gap in her treatment by stating in her affidavit that her no-fault benefits had been terminated and she could not afford to pay personally for further treatment (see Abdelaziz v Fazel, 78 AD3d 1086 [2010]). Thus, plaintiff's evidence raised triable issues of fact as to whether she had sustained a serious injury (see Abreu v Metropolitan Transp. Auth., 117 AD3d 972 [2014]; Manzano v City of New York, 107 AD3d 960 [2013]; Estrella v GEICO Ins. Co., 102 AD3d 730 [2013]).
Accordingly, the order is reversed, plaintiff's motion for leave to renew her opposition to defendant's prior motion for summary judgment dismissing the complaint is granted, and, upon renewal, defendant's motion for summary judgment dismissing the complaint is denied.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: July 07, 2015