Kraska v. Puleo

299 A.D.2d 397, 749 N.Y.S.2d 95

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated August 17, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the injured plaintiff 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 a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In support of his motion for summary judgment the defendant submitted medical reports from the injured plaintiffs examining physician, which showed that she sustained limitations of motion in her neck. Furthermore, a magnetic resonance image report of the injured plaintiffs cervical spine, also submitted by the defendant, showed a disc bulge at C5-C6. The defendant failed to demonstrate that the plaintiffs neck injury was not serious or was not causally related to the subject accident (see Urbanski v Mulieri, 287 AD2d 710; Trantel v Rothenberg, 286 AD2d 325; Kosciolek v Jianguo Chen, 283 AD2d 554; Papadonikolakis v First Fid. Leasing Group, 283 AD2d 470; Murphy v Demas, 277 AD2d 208; Flanagan v Hoeg, 212 AD2d 756). Accordingly, the defendant failed to make out a prima facie case of his entitlement to judgment as a matter of law, and we need not consider whether the plaintiffs’ opposition to the motion was sufficient to raise a triable issue of fact (see Trantel v Rothenberg, supra). Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.