Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered November 9, 2007. The order denied plaintiff's motion for leave to renew a prior motion by defendants Shoaib Javed, Inc. and Subashis Tat, and a prior cross motion by defendant Antoine D. Joseph, for summary judgment dismissing the complaint and, upon renewal, to deny summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. Defendants Shoaib Javed, Inc. (Shoaib Javed) and Subashis Tat (Tat) moved, and defendant Antoine D. Joseph (Joseph) cross-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). Plaintiff opposed the motion and cross motion, submitting, inter alia, an independent chiropractic report, which was sworn to before a New Jersey notary. Defendant Joseph's attorney submitted a reply affirmation, arguing that the independent chiropractic report was insufficient to raise an issue of fact, in that it did not set forth numerical values for the chiropractor's range of motion tests or offer an explanation for an approximately seven-year gap in treatment. The Civil Court granted defendants' motion and cross motion, finding, sua sponte, that the affidavit of plaintiff's chiropractor was not in admissible form since it was notarized outside the State of New York and not accompanied by a certificate of conformity (see CPLR 2309 [c]). The court further determined that even if the affidavit had been in admissible form, it was insufficient to raise an issue of fact in opposition to the summary judgment motions. A judgment dismissing the complaint was subsequently [*2]entered.

Plaintiff thereafter moved for leave to renew the motion and cross motion, and, upon renewal, to deny summary judgment on the ground that triable issues of fact exist. In support of the motion, plaintiff submitted an affidavit by his chiropractor, sworn to before a notary of the State of New York, which was otherwise identical to the prior affidavit sworn to before the New Jersey notary. Defendants Shoaib Javed and Tat opposed plaintiff's motion, arguing that plaintiff did not provide a reasonable justification for the failure to submit an affidavit in proper evidentiary form in opposition to their prior motion and that plaintiff offered no new facts on the renewal motion. Defendant Joseph opposed plaintiff's motion, similarly asserting that plaintiff offered no new facts and maintaining, in the alternative, that the chiropractor's affidavit was insufficient to raise a triable issue of fact. The Civil Court denied plaintiff's motion, finding that plaintiff had failed to offer a reasonable justification for the failure to include an admissible affidavit in the prior motion, and, in any event, that the affidavit by plaintiff's chiropractor was insufficient to raise a triable issue of fact. This appeal by plaintiff ensued.

We note at the outset that in the absence of a specific objection by defendants to the omission of the certificate of conformity, the defect in plaintiff's chiropractor's affidavit should have been disregarded by the Civil Court (see Matter of Great Seneca Fin. Corp. v Khanna, 18 Misc 3d 138[A], 2008 NY Slip Op 50302[U] [App Term, 2d & 11th Jud Dists 2008]).

Notwithstanding the foregoing, and even assuming that the Civil Court improperly denied the motion for leave to renew on the ground that plaintiff had failed to offer a reasonable justification for the failure to include an admissible affidavit on the prior motion (see generally Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]), the court correctly left undisturbed the order granting defendant summary judgment.

Defendants established prima facie that plaintiff did not meet the serious injury threshold pursuant to Insurance Law § 5102 (d) and shifted the burden to plaintiff (see Gaddy v Eyler, 79 NY2d 955 [1995]). The record demonstrates that the affidavit of plaintiff's chiropractor was insufficient to create an issue of fact with regard to the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of serious injury (see Smeja v Fuentes, 54 AD3d 326 [2008]; Page v Belmonte, 45 AD3d 825 [2007]). Furthermore, plaintiff's submissions failed to raise an issue of fact as to whether Kingsley Joseph suffered a medically determined injury of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Insurance Law § 5102 [d]). Accordingly, the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2009