Jones v. Jacob

1 A.D.2d 485, 767 N.Y.S.2d 280

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated July 31, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant failed to establish her prima facie entitlement to summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) {see Gaddy v Eyler, 79 NY2d 955 [1992]). The defendant’s examining orthopedist indicated in his affirmation, inter alia, that he reviewed certain sworn and improperly sworn magnetic resonance imaging reports of the plaintiff’s cervical and lumbosacral spine, which revealed disc herniations at C4-5 and C6-7, a disc bulge at C5-6, and a herniation at L4-L5. However, the examining orthopedist failed to demonstrate in his affirmation that the plaintiffs injuries were not causally related to the accident, or that they were not serious within the meaning of Insurance Law § 5102 (d) {see Shin v Torres, 295 AD2d 495 [2002]; Franca v Parisi, 298 AD2d 554 [2002]; Junco v Ranzi, 288 AD2d 440 [2001]; Papadonikolakis v First Fid. Leasing Group, 283 AD2d 470 [2001]). Therefore, the grant of summary judgment to the defendant was improper. Accordingly, we need not consider whether the plaintiffs opposition papers were sufficient to raise a triable issue of fact {see Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). Ritter, J.E, McGinity, Townes and Cozier, JJ., concur.