Opinion
1662
September 30, 2003.
Order, Supreme Court, Bronx County (Dianne Renwick, J.), entered November 12, 2002, which granted plaintiff's motion to renew a prior order granting defendants' motion for summary judgment dismissing the complaint for lack of a serious injury as required by Insurance Law § 5102(d), and, upon renewal, denied the motion for summary judgment, unanimously affirmed, without costs.
Manuel J. Mendez, for plaintiff-respondent.
Jason M. Bernheimer, for defendants-appellants.
Before: Nardelli, J.P., Mazzarelli, Andrias, Ellerin, Marlow, JJ.
The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v. Republic Elev. Corp., 267 A.D.2d 57) . Renewal may be granted where the failure to submit a doctor's report in affidavit form "'was inadvertent and . . . absent . . . any showing by defendants of prejudice attributable to the short delay caused by such failure'" (Ramos v. Dekhtyar, 301 A.D.2d 428;see also Segall v. Heyer, 161 A.D.2d 471). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 352-353; Gonzalez v. Vasquez, 301 A.D.2d 438; Aguilar v. N.Y.C. Water Works, 298 A.D.2d 245).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.