Zalduondo v. Lazowska

234 A.D.2d 455, 651 N.Y.S.2d 117, 1996 N.Y. App. Div. LEXIS 13003

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1996
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Golden, J.), entered April 24, 1996, which denied his motion for summary judgment dismissing the complaint without prejudice to renewal.

Ordered that the order is affirmed, with costs.

The plaintiff’s treating physician submitted an affidavit, supported by exhibits, in which he set forth the injuries and course of treatment, identified a limitation of movement and, on the basis of a magnetic resonance imaging (hereinafter MRI) study, determined that the plaintiff suffered from a bulging cervical disk. On that predicate, the plaintiff's treating physician expressed the opinion that there was a significant limitation of the use of a body function. Such evidence was sufficient for the denial of the defendant’s motion for summary judgment (see, Lopez v Senatore, 65 NY2d 1017; see also, Miller v Metropolitan Suburban Bus Auth., 186 AD2d 116, 117).

The plaintiff’s failure to submit a copy of the MRI report in opposition to the defendant’s motion for summary judgment may have deprived the defendant of any meaningful opportunity to contest the findings of the plaintiff’s treating physician. However, since the court denied the defendant’s motion for summary judgment without prejudice to renewal, the failure to submit the report does not defeat the plaintiff’s effort to raise a triable issue of fact (see, Miller v Metropolitan Suburban Bus Auth., supra, at 118). Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.