Pulgram v Reisner

Pulgram v Reisner 2007 NY Slip Op 07898 [44 AD3d 503] October 18, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Anthony Pulgram, Appellant,
v
Peter Reisner et al., Respondents.

—[*1] Russo, Keane & Toner, LLP, New York City (Thomas F. Keane of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 30, 2006, which granted defendants' motion for summary judgment dismissing the complaint, and order, same court and Justice, entered March 23, 2007, which, to the extent appealable, denied plaintiff's motion to renew, unanimously affirmed, without costs.

On their initial motion, defendants established prima facie entitlement to summary judgment by sufficiently demonstrating that plaintiff had not sustained a serious injury from this accident within the meaning of Insurance Law § 5102 (d) (Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Plaintiff failed to raise an issue of fact by countering with "objective medical findings . . . based on a recent [medical] examination" (Thompson v Abbasi, 15 AD3d 95, 97 [2005] [internal quotation marks omitted]) in admissible form.

Denial of the motion to renew was a provident exercise of discretion. Plaintiff offered no explanation, reasonable or otherwise, for his failure to submit admissible evidence in opposition to defendant's summary judgment motion (see e.g. Cillo v Schioppo, 250 AD2d 416 [1998]). Even if the court had considered the evidence offered by plaintiff, it would have been properly denied as insufficient. Concur—Saxe, J.P., Marlow, Williams, Sweeny and Malone, JJ.