Maco v Perdomo

[*1] Maco v Perdomo 2010 NY Slip Op 51354(U) [28 Misc 3d 134(A)] Decided on July 29, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1080 Q C.

Lila Maco, Appellant,

against

Jose S. Perdomo, ANTON PERGJOKAJ and AGRON PERGJOKAJ, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered February 20, 2009. The order denied plaintiff's motion for leave to renew defendant Jose Perdomo's prior motion for summary judgment and, upon renewal, to deny defendant's motion.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. On or about June 23, 2008, defendant Jose S. Perdomo (defendant) moved for summary judgment dismissing the complaint on the ground that plaintiff failed to meet the serious injury threshold requirement of Insurance Law § 5102 (d). In opposition, plaintiff essentially conceded that defendant had established a prima facie showing, and relied upon a report from plaintiff's treating chiropractor to raise a triable issue of fact. The Civil Court granted defendant's motion, finding, among other things, that it could not consider the chiropractor's report because it was not in proper form. Plaintiff then moved for leave to renew the prior motion, pursuant to CPLR 2221 (e), seeking to resubmit the report in properly sworn form. The Civil Court denied the motion, and we affirm.

While courts have allowed parties to resubmit chiropractor reports that had originally been submitted in improper form (see e.g. Shaw v Looking Glass Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]), in this case, plaintiff failed to set forth a reasonable justification for her initial failure to submit the properly sworn report. In an affirmation in support of the motion to renew, plaintiff's counsel alleged that he was unaware of the need for a chiropractor's report to be sworn, despite having practiced for over 45 years, mostly in the area of personal injury. He further indicated that he did [*2]not attempt to have the report properly sworn and notarized until after he had received defendant's reply papers objecting to the form of the report. However, the copy of the report submitted with the motion to renew indicates that it was sworn to prior to the submission of plaintiff's original opposition. Counsel failed to explain the discrepancy in the dates or to offer any reasonable explanation for the failure to submit the sworn report in the first instance (see e.g. Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008])

In any event, as the Civil Court found, the report was insufficient to raise a triable issue of fact. The resubmitted report failed to include any range of motion test results, and neither the original nor the resubmitted report showed the existence of range of motion limitations that were contemporaneous with the subject accident (see e.g. Milosevic v Mouladi, 72 AD3d 1036 [2010]; Knox v Lennihan, 65 AD3d 615 [2009]; Niles v Lam Pakie Ho, 61 AD3d 657 [2009]). In these circumstances, the Civil Court did not improvidently exercise its discretion in denying the motion to renew, and the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010