Derival v. New York City Transit Authority

289 A.D.2d 281, 734 N.Y.S.2d 579, 2001 N.Y. App. Div. LEXIS 11983

Opinion

In an action to recover damages for personal injuries, the defendant Judith Blaise appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated January 8, 2001, as denied her motion for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and the defendants New York City Transit Authority and David Illas separately appeal from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

In support of their respective motions for summary judgment dismissing the complaint, the defendants each relied upon an MRI report of the plaintiff which found the existence of a bulging disc in his cervical spine. The defendants failed to demonstrate that the bulge was not causally related to the subject accident (see, Chaplin v Taylor, 273 AD2d 188). Accordingly, they each failed to make out a prima facie case of their entitlement to judgment as a matter of law.

Under these circumstances, we need not consider whether the plaintiff’s opposing papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437). Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.