Cruz v Ava Serv. Corp.

Cruz v Ava Serv. Corp. 2016 NY Slip Op 08838 Decided on December 28, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 28, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
2015-05224
2016-00977
(Index No. 29124/11)

[*1]Dawn Cruz, appellant, et al., plaintiff,

v

Ava Service Corp., et al., respondents, et al., defendant (and third- party actions).

Mesterman Law, PLLC, New York, NY (Dan Mesterman and Lawrence Lame of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff Dawn Cruz appeals from (1) an order of the Supreme Court, Queens County (Taylor, J.), entered April 1, 2015, which denied her motion for leave to renew her opposition to that branch of the motion of the defendants Ava Service Corp. and Ramon M. Flores which was for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, which had been granted in an order of the same court dated May 6, 2014, and (2) an order of the same court entered April 29, 2015, which sua sponte vacated a prior order of the same court.

ORDERED that the appeal from the order entered April 29, 2015, is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2]), and leave to appeal has not been granted (see CPLR 5701[c]); and it is further,

ORDERED that the order entered April 1, 2015, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Ava Service Corp. and Ramon M. Flores.

The Supreme Court providently exercised its discretion in denying the motion of the plaintiff Dawn Cruz (hereinafter the appellant) for leave to renew her opposition to that branch of the motion of the defendants Ava Service Corp. and Raman M. Flores which was for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The appellant failed to demonstrate that the new evidence submitted would have changed the prior determination (see CPLR 2221[e]; Bauman v Ottaviano, 126 AD3d 742; Loverde v Gill, 108 AD3d 748).

LEVENTHAL, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court