Damone Gadsden v Yamilka Montes

Gadsden v Montes 2003 NY Slip Op 19709 [2 AD3d 674] December 22, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Damone Gadsden, Appellant,
v
Yamilka Montes et al., Respondents.

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Owen, J.), dated December 18, 2002, which denied that branch of his motion which was for leave to reargue, and which, upon granting that branch of his motion which was for leave to renew, adhered to a prior determination of the same court dated September 3, 2002, granting the separate motions of the defendants Yamilka Montes and Ana Cruz, the defendant Janea Hill, and the defendant Earl Melvin for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the appeal from so much of the order as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order of denying leave to reargue; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

Contrary to the plaintiff's contention on appeal, the affirmed medical report offered in support of that branch of his motion which was for leave to renew was insufficient to raise a triable issue of fact that he sustained a serious injury within the meaning Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Dufel v Green, 84 NY2d 795 [1995]; Chinnici v Brown, 295 AD2d 465 [2002]; Collazo v Jun Yong Kim, 288 AD2d 173 [2001]; Taylor v Jerusalem Air, 280 AD2d 466 [2001]). Accordingly, upon granting renewal, the Supreme Court properly adhered to the prior determination granting the respondents' separate motions for summary judgment dismissing the complaint insofar as asserted against them.

The plaintiff's remaining contentions concern that branch of his motion which was for leave to reargue, the denial of which is not appealable (see Piacentini v Mineola Union Free School Dist., 279 AD2d 513 [2001]). Ritter, J.P., Florio, S. Miller and H. Miller, JJ., concur.