Worley v Cruz

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Worley v Cruz 2012 NY Slip Op 30487(U) February 17, 2012 Sup Ct, Nassau County Docket Number: 019098/09 Judge: Thomas P. Phelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ".. .................................... .,- [* 1] (/ t'+- SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK Present: HON. THOMAS P. PHELAN. Justice TRIAL/IAS PART 2 NASSAU COUNTY SHARON WORLEY and SHY ASIA L. WORLEY, an infant over the age of 14 years by her mother and natural guardian, Sharon Worley and SHARON WORLEY, individually, ORIGINAL RETURN DATE: 12/03/2011 Plaintiff( s) , SUBMISSION DATE:01l1O/2011 INDEX No. : 019098/09 -against - JOSE S. CRUZ, ERIKA L. CRUZ and BRIANNE MARTURELLA, MOTION SEQUENCE #3 Defendant(s) . The following papers read on this motion: Notice of Motion to Reargue Affirmation in Opposition ....................................... Reply Affirmation.................................................... Plaintiff s motion , pursuant to CPLR 2221 (d) and CPLR 2221 (e), for leave to reargue , is denied. and renew the order dated July 13 , 2011 This is a personal injury action arising out of a three-car collision on the Southern 2009. By an Order dated July 13, 2011 State Parkway in Nassau County on May 21 summar judgment dismissal of this Court granted defendants ' separate motions for s claims on the grounds that her injuries did not the infant plaintiff, Shyasia Worley 02( d). This satisfy the " serious injury" threshold requirement of Insurance Law 951 " " [* 2] Re: Worley v Cruz Court determned that while the case prima facie defendants had established a " within the meaning showing that Shyasia Worley did not sustain a "serious injury admssible of the Insurance Law , plaintiff, in opposition , failed to come forward with evidence to overcome the defendants ' submissions by demonstrating that a triable issue of fact that a " serious injury" was sustained. Specifically, this Court determined that in the absence of any evidence substantiating " or the her claim that her injuries satisfied the " fracture permanent loss of use restrcted to the 90/180" categories of the serious injury statute , the analysis must be permanent consequential remaining two categories alleged by plaintiff, to wit: " limitation of use of a body organ or member" and " significant limitation of use of a body fuction or system. In that regard , this Court noted that plaintiffs admissible evidence consisted of the , D. , who treated plaintiff from sWQrn affidavit of chiropractor , Ronald P. Mazza May 22 2009, until December 17, 2010; the sworn undated affirmation of John T. the MRI Rigney, M. , a board certified radiologist who directed and supervised spines on June 11 , 2009, and read the examinations of plaintiff s cervical and lumbar , Bienvenido P. accompanying reports; the sworn affidavit of the physical therapist 2009; and the plaintiffs own Ceballos, Jr. , who first " treated" plaintiff on May 26, , plaintiffs submissions did not affidavit dated February 19, 2011. While admissible present a trable issue of fact. Specifically, Dr. Mazza s chiropractic examinations of plaintiff on May 22 , 2009 and cervical and December 17, 2010 which included range of motion testing of her lumbar spine , was not substantiated with any objective testing and thus did not constitute competent admissible evidence. This Court held that the failure to indicate which objective test was performed to measure the loss of range of motion is contrary 98 NY2d 345 (2002), Alade rendering the expert' s opinion as to any purported loss , the affidavit of the physical 31 AD3d 523 (2d Dept. 2006)). For these same reasons notes and therapist , Bienvenido P. Ceballos , Jr. , and his accompanying treatment to the requirements of Toure v. Avis Rent a Car Systems, worthless (Id; Powell v. [* 3] Re: Worley v Cruz assessments , were found to be equally incompetent. Finally, the affirmed report of radiologist Dr. Rigney was also insufficient to raise an issue of fact with respect to Rigney did not report an opinion as to plaintiffs alleged serious injur because Dr. the causality of the findings anywhere in his reports or in his sworn (albeit undated) Linares, BetheilStone evidence 276 AD2d 732 (2d Dept. 2000)). This Court held therefore that the fact. submitted by plaintiff was insufficient to raise a trable issue of affirmation v. Spitz 8 AD3d 321 (2d Dept. 2004); v. (Collins A motion to reargue is addressed to the discretion of the court and is designed afford a part an opportnity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle oflaw (CPLR 2221 (d)(2)). It is not designed as a vehicle to afford the unsuccessful part an opportunity to argue once again the very v. Rodner (Gellert questions previously decided Gem Community Mgt., Inc. 20 AD3d 388 (2d D pt. 2005)). Nor is it designed to provide part to advance arguments different from those originally an opportunity for a tendered v. (Amato Taylor, Inc. 10 AD3d 374 375 (2dDept. 2004)) or argue Utica Lord (Levi v. a new theory of law or raise new questions not previously advanced X Large Enterprises, demonstrate the Inc. 280 AD2d 514 515 (2d Dept. 2001)). Instead , the movants must matters of fact or law that they believe the court has misapprehended or overlooked 27 AD3d 743 (2 Dept. 2006)). Absent a showing of Debello(Barrett First Ins. Co. (Hoffmann st 12 AD3d 256 258 (1 v. Frisenda Dept. 2004); Teheny, v. misapprehension or the overlooking of a fact, the cour must deny the motion v. Jeannot 18 AD3d 679 (2d Dept. 2005)). Further , a motion to reargue is based solely upon the papers submitted in connection with the prior motion. New facts may Nestor 120 AD2d 442 (pt (James v. not be submitted or considered by the court Dept. 1986); Philips v. Village of Oriskany, 57 AD2d 110 (4th Dept. 1997)). affidavit of Dr. Here , in requesting reargument , plaintiffs attempt to cure the defective , 2011 in Mazza by submitting a new and mote recent affidavit dated November 14 which Dr. Mazza states that "it is (his) custom and practice to use an arthrodial protractor when taking all range of measurements in (his) office " (Ex. F 3). Indeed [* 4] Re: Worley v Cru s test and Dr. Mazza s new affidavit also alleges positive findings including Kemp , 2011 , affidavit. Plaintiffs argue Lindner s sign that were not mentioned in his May 4 that Dr. Mazza " affirmed" his records , including all range of motion measurements within his affidavit of May 4 2011. These arguments are entirely unsubstantiated and s prior order. wholly insufficient to warrant a reargument of this Court' s earlier affidavit submitted in Specifically, a plain and simple reading of Dr. Mazza conjunction with the underlying opposition to the motions confirms that plaintiffs bald assertion that Dr. Mazza had attested to the accuracy of his objective findings s affidavit untre. The fact is that Dr. Mazza is entirely meritless and patently , did not set submitted in opposition to the underlying motions for summary judgment measurements. forth the objective tests that he used to determne his range of motion misapprehended , plaintiffs herein fail to establish that the cour overlooked or Thus the relevant facts. By now submitting another new affidavit by Dr. Mazza , the s earlier affidavit and their plaintiffs attempt to cure the deficiency of the chiropractor permssible. New facts may otherwse insufficient medical submissions. This is not Nestor (James v. not be submitted or considered by the court on a motion to reargue supra; Philips v. Village of Oriskany, supra). s prior July 13, 2011 Inasmuch as plaintiffs bring an application to renew this Court' to renew order , said motion is also denied. It is well settled that a motion shall be based upon new facts not offered on the prior motion that would change the shall contain reasonable justification prior determnation" (CPLR 222 (e)(3)) and " Barnett for the failure to present such facts on the prior motion , 57 AD3d 936 (2d Smith 64 AD3d 669 (2d Dept. 2009); Chernysheva v. Pinchuck " (CPLR 2221 (e)(3)); v. Dept. 2008)). Here , plaintiffs attempt to argue that the " inadvertent clerical error which omitted Dr. (sic) Mazza s custom and practice of taking all range of motion measurements with ofthis an arthrodial protractor should amount to excusable neglect (and that) (i)n light , ~15). By new evidence " their motion to renew should be granted (Aff. in Support .. [* 5] Re: W orIey v Cruz definition , however , plaintiffs attempt to classify this " error" cannot constitute "new evidence for the purposes of considering an application to renew this Court' s prior Order. By plaintiffs ' own theory and argument, Mr. Mazza intended to incorporate the basis of his " objective " findings in his underlying affidavit submitted to this Cour. Thus, although this material fact clearly existed at the time the motion was made, plaintiff also cannot claim that they did not then know of it. Accordingly, plaintiffs ' motion for an Order ofthis Court , pursuant to CPLR 2221 (d) and CPLR 2221 (e) for leave to reargue and renew the Decision and Order of this Court dated July 13, 2011 is herewith denied. This decision constitutes the order of this Court. HON THOMAS P. PMEtAN Date: / IJ , ao I JSC ENTI= I;D Attorneys Levine and Wiss , PLLC Attorney for Plaintiff 259 Mineola Boulevard Mineola, New York 11501 Robert P. Tuss Attorney for Defendant 1225 Franlyn Avenue Suite 500 Garden City, New York 11530- 1659 FJ: NASSAU COUNTY ? 2 2012 OUNT CLERK" OF, ; ,c

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