holding unsworn MRI report inadmissible to establish serious injurySummary of this case from Molina v. U.S.
June 5, 1995
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is modified, on the law, by deleting the provisions thereof which vacated the order dated September 20, 1993, and denied the motion for summary judgment, and substituting therefor a provision adhering to the original determination in the order dated September 20, 1993; as so modified, the order is affirmed, with costs to the defendants.
While a motion for leave to renew a prior motion should generally be based on newly discovered facts, it is within the court's discretion to grant renewal even upon facts known to the movant at the time of the original motion (see, Canzoneri v Wigand Corp., 168 A.D.2d 593). Here, the court properly exercised its discretion and accepted as new evidence proof that was available to the plaintiffs at the time of the defendants' original motion.
However, upon renewal, the court should have adhered to its original determination. Although the affirmation of Dr. Leonard Harrison, which was submitted in support of the plaintiffs' motion to renew, stated that an examination performed five months earlier revealed a restriction of motion of the injured plaintiff's cervical, dorsal, and lumbosacral spine, it failed to specify the degree of the restriction of motion in the affected areas. Although Dr. Harrison noted that the report of a magnetic resonance imaging examination (hereinafter MRI) taken on April 14, 1994, included "findings of a bulging disc at L 4/5 and L 5/S1", Dr. Harrison did not indicate that he reviewed the actual MRI films. He merely annexed a copy of an unsworn MRI report, prepared by another doctor, to his affirmation. The plaintiff may not rely on an unsworn report (see, Pagano v Kingsbury, 182 A.D.2d 268). Therefore, the evidence submitted was insufficient to establish that the injured plaintiff sustained a "permanent consequential limitation of use" (see, Tipping-Cestari v. Kilhenny, 174 A.D.2d 663). Bracken, J.P., Rosenblatt, Krausman and Goldstein, JJ., concur.