Jankowsky v. Smith

May 28, 2002
Versions:294 A.D.2d 540
742 N.Y.S.2d 876
2002 N.Y. App. Div. LEXIS 5622

—In an action to recover damages for personal injuries, the defendants Ely E. Lehmann and Abraham Feldman appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated August 27, 2001, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

Among the papers submitted in support of the appellants’ motion for summary judgment was a report from their examin*541ing orthopedist which, inter alia, indicated that he reviewed a magnetic resonance image (hereinafter MRI) of the plaintiffs lumbar spine that revealed a disc herniation at L5-S1. The orthopedist concluded that “there is probable causality between the injuries sustained and the accident reported.” The examining orthopedist also conducted objective tests which revealed that the plaintiff had certain limitations in her range of motion.

Contrary to the appellants’ contention, the Supreme Court correctly denied their motion for summary judgment dismissing the complaint insofar as asserted against them. Since a disc herniation and limited range of motion based on objective findings may constitute evidence of a serious injury, the defendants failed to establish a prima facie case of their entitlement to judgment as a matter of law (see Lewis v White, 274 AD2d 455; Chaplin v Taylor, 273 AD2d 188; Grossman v Wright, 268 AD2d 79, 84; O’Dol v Malley, 245 AD2d 436; Risbrook v Coronamos Cab Corp., 244 AD2d 397; Flanagan v Hoeg, 212 AD2d 756, 757; Kim v Cohen, 208 AD2d 807). Accordingly, we need not consider the sufficiency of the plaintiffs opposition papers under these circumstances (see Chaplin v Taylor, supra; Mariaca-Olmos v Mizrhy, 226 AD2d 437). Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.