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Henry v. Peguero

April 29, 2010

ROBERT HENRY, PLAINTIFF-RESPONDENT,
v.
PEDRO L. PEGUERO, ET AL., DEFENDANTS-APPELLANTS.



Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about June 1, 2009, which, upon plaintiff's motion to renew and reargue a prior order, same court and Justice, entered November 10, 2008, granting summary dismissal of the complaint, granted defendants' motion for summary judgment only to the extent of dismissing plaintiff's claims under the 90/180-day test, reversed, on the law, without costs, the motion denied and the order dismissing the entire complaint reinstated. The Clerk is directed to enter judgment accordingly.

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.

Tom, J.P., Andrias, Saxe, McGuire, Manzanet-Daniels, JJ.

13200/07

Plaintiff alleged that he was injured on September 27, 2006 when a Lincoln Town Car, owned and operated by defendants, struck the passenger side of his Honda Accord. Plaintiff did not seek immediate medical treatment but flew to Florida to visit a friend, initially consulting Dr. Bhupinder S. Sawhney on October 11, 2006, following his return. The doctor's November 20, 2006 report of an MRI of the lumbar spine notes a degenerative condition ("Facet arthropathy from L4 through S1 is evident bilaterally"), and a subsequent report by Dr. Shahid Mian states, "MRI scan of the cervical spine dated 10/12/06 report [sic] diffuse disc dessication." On the prior motion, defendants sought dismissal on the ground that plaintiff had failed to demonstrate that he sustained a serious injury (Insurance Law § 5102[d]). Defendants tendered the report of a physician, Dr. Gregory Montalbano, who observed that the November 20, 2006 MRI, consistent with one performed on March 23, 2007, showed "degenerative changes which occur over time." Noting that "[s]ingle level acute disc herniations typically cause incapacitation for two or more weeks and require marked activity modification, bed rest and strong prescription pain medications," Dr. Montalbano concluded that plaintiff "suffers from a pre-existing condition of degenerative disc disease involving the lumbar spine at multiple levels which is reported for both scans."

In opposition, plaintiff submitted an affirmation by Dr. Mian stating that "Mr. Henry's injuries are causally related to the motor vehicle accident of 9/27/06." However, in the order from which renewal was sought, Supreme Court agreed with defendants that plaintiff's "injuries and his subsequent surgery were due to a pre-existing degenerative condition," further finding that plaintiff had "failed to provide an adequate explanation for the gap in treatment."

On his motion for renewal, plaintiff offered an addendum from Dr. Mian, which concluded that the "disc herniation of L4-5 and L5-S1 of the lumbar spine are causally related to the accident, and not from a pre-existing condition or long standing degenerative process." The addendum adds that "the impact from the subject accident plainly made the disc pathologies symptomatic."

It is apparent that the supplemental medical statement was submitted in the attempt to remedy a weakness in plaintiff's opposition to defendants' original motion, endeavoring to relate the degenerative changes in plaintiff's spine to the motor vehicle accident. As this Court has emphasized, "Renewal is granted sparingly . . . ; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Beiny, 132 AD2d 190, 210 [1987], lv dismissed 71 NY2d 994 [1988]). It is statutorily decreed that a renewal motion "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and that the application "shall contain reasonable justification for the failure to present such facts on the prior motion" (2221[e][3]). While the statutory prescription to present new evidence "need not be applied to defeat substantive fairness" (Lambert v Williams, 218 AD2d 618, 621 [1995]), such treatment is available only in a "rare case" (Pinto v Pinto, 120 AD2d 337, 338 [1986]), such as where liberality is warranted as a matter of judicial policy (see Wattson v TMC Holdings Corp., 135 AD2d 375 [1987] [leave to amend complaint]), and then only where the movant presents a reasonable excuse for the failure to provide the evidence in the first instance (see Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 377 [2001]).

This construction is consistent with this Court's view that motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b). As we have stated, "We perceive no reason to protract a procedure designed 'to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial' (Di Sabato v Soffes, 9 AD2d 297, 299) by encouraging submission of yet another set of papers, an unnecessary and unauthorized elaboration of motion practice" (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Thus, a deficiency of proof in moving papers cannot be cured by submitting evidentiary material in reply (see Migdol v City of New York, 291 AD2d 201 [2002]), the function of which is "to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion" (Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Nor can a deficiency in opposing a motion be cured by resorting to a surreply (see e.g. Garced v Clinton Arms Assoc., 58 AD3d 506, 509 [2009]).

Supreme Court's grant of renewal in this matter contravenes this Court's policy of confining motion practice to the limits imposed by the CPLR. Neither of the statutory requirements for renewal was satisfied by plaintiff. Dr. Mian's addendum was not the result of any additional examination or medical testing; rather, the doctor's conclusion was based on the medical information previously available to him and could have been included in his original affidavit (see Cillo v Schioppo, 250 AD2d 416 [1998]). While, in appropriate circumstances, renewal may be predicated on previously known facts, it is settled that "[t]he movant must offer a reasonable excuse for failure to submit the additional evidence on the original motion" (Segall v Heyer, 161 AD2d 471, 473 [1990]), which plaintiff neglected to do.

Even if this Court were to accept the proffered addendum, it is insufficient to rebut the finding of defendants' physician that plaintiff's affliction is degenerative in nature rather than the consequence of a serious injury causally related to the accident (see Lopez v American United Transp., Inc., 66 AD3d 407 [2009]; Eichinger v Jone Cab Corp., 55 AD3d 364 [2008]). While Dr. Mian's addendum states that the accident caused plaintiff's underlying pathology to become manifest, it utterly fails to explain the two-week gap between the accident and the commencement of treatment, which "interrupt[s] the chain of causation between the accident and claimed injury" (Pommells v Perez, 4 NY3d 566, 572 [2005]). Thus, we conclude that defendants submitted "evidence of a pre-existing degenerative disc condition causing plaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact" (id. at 579). All concur except Saxe and Manzanet-Daniels, JJ. who dissent in a memorandum by Manzanet-Daniels, J. as follows: MANZANET-DANIELS, J. (dissenting)

The motion court properly entertained plaintiff's motion to renew, based on the addendum report of Dr. Mian, and upon renewal, properly denied defendants' motion to the extent it sought dismissal of plaintiff's claims alleging a significant limitation of use of bodily function or system and a permanent consequential limitation of use of a body organ and/or member. This case, like the recent case of Linton v Nawaz, 62 AD3d 434 [2009], presents the vexing question of the quantum of proof necessary to raise a triable issue of fact concerning causation where defendant alleges the existence of a pre-existing, degenerative condition. Defendants failed to present persuasive proof of a pre-existing degenerative condition, as described in Pommells v Perez (4 NY3d 566 [2005]), and plaintiff's submissions sufficiently raised a triable issue of fact as to whether his injuries were attributable to the accident as opposed to a pre-existing, degenerative condition. I would accordingly affirm the order of the motion court in all respects.

Plaintiff, born December 28, 1958, commenced this action to recover damages for personal injuries allegedly sustained in an automobile accident on September 27, 2006. In his bill of particulars, plaintiff identified various injuries including (1) tears of the annulus fibrosis at L4-L5 and L5-S1, (2) disc herniations at L1-L2, L4-L5 and L5-S1, and (3) disc bulges at L3-L4 and L4-L5. In his supplemental bill of particulars, plaintiff noted that he had undergone a percutaneous discectomy at L4-L5 and L5-S1 levels with the Stryker Dekompressor System.

Defendants filed a motion for summary judgment dismissing the complaint on the ground that plaintiff failed to establish the existence of a "serious injury" (Insurance Law ยง 5102[d]). In support, defendants submitted, inter alia, an affirmation from Dr. Gregory Montalbano, ...


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