Boland v. Dig America, Inc.

277 A.D.2d 337, 717 N.Y.S.2d 205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants in Action No. 2 appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated March 8, 2000, which denied their motion for summary judgment dismissing the complaint in Action No. 2 on the ground that the plaintiff in that action did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the appellants’ motion. In support of their motion, the appellants submitted proof that a magnetic resonance imaging of the plaintiffs cervical spine showed a “posterior herniation of the C5-6 intervertebral disc.” A disc herniation may constitute a serious injury within the meaning of the Insurance Law (see, Flanagan v Hoeg, 212 AD2d 756, 757). The appellants failed to demonstrate that the herniation was not related to the subject accident (see, Chaplin v Taylor, 273 AD2d 188). Accordingly, the appellants failed to make out a prima facie case for judgment as a matter of law. Under these circumstances, we need not consider whether the respondent’s papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.