SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
July 28, 2011
JOSEPH ICCARI, RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 23, 2010, deemed from a judgment of the same court entered August 17, 2010 (see CPLR 5520 [c]).
Licastri v Iccari
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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2011
PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ
The judgment, entered pursuant to a December 15, 2008 order granting, on default, defendant's motion for summary judgment, dismissed the complaint. The appeal from the judgment brings up for review the June 23, 2010 order which denied plaintiff's motion to vacate the December 15, 2008 order and, upon vacatur, to deny defendant's motion for summary judgment.
ORDERED that the judgment is affirmed, without costs.
In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). By order entered December 15, 2008, the Civil Court granted the motion on default. Plaintiff subsequently moved to vacate the order and, upon vacatur, to deny defendant's motion for summary judgment. By order entered June 23, 2010, the Civil Court denied plaintiff's motion. Plaintiff filed his notice of appeal from the order on August 17, 2010, the same date that a judgment was entered dismissing the complaint. We deem the appeal to have been taken from the judgment (see CPLR 5520 [c]).
In order to vacate the order granting, on default, defendant's motion for summary judgment dismissing the complaint, plaintiff was required to demonstrate both a reasonable excuse for his default and a potentially meritorious cause of action (see CPLR 5015 [a] ; Legaretta v Ekhstor, 74 AD3d 899 ; Political Mktg., Int'l, Inc. v Jaliman, 67 AD3d 661 ). In our view, plaintiff presented a reasonable excuse for failing to oppose defendant's motion for summary judgment.
However, plaintiff failed to demonstrate the existence of a potentially meritorious cause of action. The range of motion tests, which had been performed by plaintiff's treating doctor, were described in an affidavit of a different medical professional, the chiropractor who had subsequently treated plaintiff. The test results were not presented in admissible form since they were not sworn to by someone with personal knowledge of the facts (see Simanovskiy v Barbaro, 72 AD3d 930 ). Moreover, although the chiropractor later performed his own physical examination of plaintiff three months after the subject accident, the chiropractor failed to quantify the limitations he found in the ranges of motion of plaintiff's cervical and lumbar spine (see Pierson v Edwards, 77 AD3d 642 ; Tobias v Chupenko, 41 AD3d 583 ). Furthermore, plaintiff's radiologist offered no opinion as to the cause of plaintiff's injuries (see Knox v Lennihan, 65 AD3d 615 ). Consequently, inasmuch as plaintiff did not present competent medical evidence of a serious injury contemporaneous with the subject accident (see Pierson v Edwards, 77 AD3d 642; Tobias v Chupenko, 41 AD3d 583), plaintiff's submissions were inadequate to defeat defendant's motion for summary judgment. Accordingly, the judgment is affirmed.
Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011
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