Mariaca-Olmos v. Mizrhy

226 A.D.2d 437, 640 N.Y.S.2d 604, 1996 N.Y. App. Div. LEXIS 3584

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated February 28, 1995, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff has not suffered a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the defendants’ motion for summary judgment is denied, and the complaint is reinstated.

The Supreme Court improperly granted the defendants’ motion for summary judgment. A magnetic resonance imaging of the plaintiffs lumbosacral spine shows, inter alia, a "centrally bulging annulus at [the] L5-S1 level.” The defendants failed to submit sufficient evidence to establish as a matter of law that this injury is not causally related to the accident in question or that it is not a serious injury within the meaning of Insurance Law § 5102 (d). Thus, the defendants failed to meet their burden of establishing their entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Under these circumstances, we need not consider whether the plaintiffs papers in opposition to the defendants’ motion were sufficient to raise a triable issue of fact (see, Holtz v Niagara Mohawk Power Corp., 147 AD2d 857, 858). Mangano, P. J., Thompson, Florio and McGinity, JJ., concur.