Weiss v. D'Auria Transportation, Inc.

278 A.D.2d 316, 718 N.Y.S.2d 191, 2000 N.Y. App. Div. LEXIS 12967

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated July 14, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Saundra Weiss 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 defendants’ motion for summary judgment. A magnetic resonance imaging of the cervical spine of the injured plaintiff revealed the existence of disc bulges at C4-5, C5-6, and C6-7, and the affidavit of the plaintiffs’ expert indicated that the injury was causally related to the accident. A disc bulge may constitute a serious injury within the meaning of the Insurance Law (see, Puma v Player, 233 AD2d 308). Here, the defendants failed to demonstrate that the bulges were not related to the subject accident. Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see, Chaplin v Taylor, 273 AD2d 188). Under these circumstances, it is not necessary to consider whether the plaintiffs’ papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.