Montasano v. Napoli

302 A.D.2d 438, 754 N.Y.S.2d 580

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Carter, J.), dated September 26, 2001, which granted the defendants’ cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and (2) an order of the same court dated February 6, 2002, which denied her motion, in effect, for leave to reargue the defendants’ prior cross motion for summary judgment dismissing the complaint.

Ordered that the appeal from the order dated February 6, 2002, is dismissed; and it is further,

Ordered that the order dated September 26, 2001, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

We agree with the Supreme Court that the plaintiff failed to come forward with sufficient admissible evidence to rebut the defendants’ initial showing that she did not sustain a serious injury pursuant to Insurance Law § 5102 (d) (see Amato v Psaltakis, 279 AD2d 439). Therefore, summary judgment was properly granted to the defendants.

In addition, the plaintiff failed to offer a valid excuse as to why her affidavit and that of her husband were not submitted in opposition to the motion for summary judgment (see Bossio v Fiorillo, 222 AD2d 476). Therefore, the plaintiffs motion for leave to renew and reargue is actually one for leave to reargue, the denial of which is not appealable (see Frisenda v X Large Enters., 280 AD2d 514). Feuerstein, J.P., Goldstein, H. Miller and Rivera, JJ., concur.