Rotondi v. Horning

168 A.D.2d 944, 565 N.Y.S.2d 636, 1990 N.Y. App. Div. LEXIS 16491

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1990
• Status: Published

Opinion

Order unanimously reversed on the law with costs, motion granted and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: Supreme Court abused its discretion by denying plaintiffs’ application for leave to renew a motion for summary judgment. Plaintiff Donna Rotondi, during the pendency of a motion for summary judgment, consulted with an orthopedic surgeon regarding back and neck injuries suffered in an automobile accident. Diagnostic studies were performed which revealed a bulging disc. The physician’s report was not forwarded to Rotondi’s attorney, however, until 11 days after the court granted defendant’s motion for summary judgment, finding that she did not suffer a serious injury (see, Insurance Law § 5102 [d]). Plaintiffs then applied for leave to renew, submitting the affidavit of the orthopedic surgeon, medical exhibits, and the affidavit of Donna Rotondi and plaintiffs’ counsel in support of the application.

Leave to renew is the appropriate remedy where, as here, the existing material facts relating to a party’s physical condition were not known to plaintiffs or their counsel at the time of defendant’s motion but became known shortly thereafter (see, Foley v Roche, 68 AD2d 558, 568). The physician’s affidavit, supported by medical exhibits, described Rotondi’s injuries and treatment, identified a restriction of movement of her back and neck, and based thereon, concluded that there was a permanent consequential limitation of a body organ or member and a significant limitation of use of a body function or system. The affidavit was sufficient for the denial of summary judgment (see, Lopez v Senatore, 65 NY2d 1017, 1020), and leave to renew should have been granted. (Appeal from order of Supreme Court, Herkimer County, O’Donnell, J.— renew summary judgment.) Present — Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.