Klimis v. Lopez

Jan 28, 2002
Versions:290 A.D.2d 538
736 N.Y.S.2d 697
2002 N.Y. App. Div. LEXIS 775

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated April 25, 2001, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff George Klimis did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted evidence that the injured plaintiff, George Klimis, was suffering from a disc herniation at L4/5 and limitation of motion in his lower back. The defendants failed to demonstrate through admissible evidence that the herniation was not related to the subject accident (see, Chaplin v Taylor, 273 AD2d 188; Friedman v U-Haul Truck Rental, 216 AD2d 266), or that it did not constitute a serious injury within the meaning of Insurance Law § 5102 (d) (see, Volozhinets v DeHaven, 286 AD2d 437; Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756, 757). Furthermore, the affirmed magnetic resonance imaging report of the defendants’ radiologist was improperly submitted for the first time in their reply papers, and therefore, we decline to consider it (see, CPLR 2214; Feratovic v Lun Wah, Inc., 284 AD2d 368, 369; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470). Under these circumstances, we need not consider whether the plaintiffs’ papers were sufficient to raise a triablé issue of fact (see, Boland v Dig Am., 277 AD2d 337). Ritter, Acting P.J., Feuerstein, O’Brien, H. Miller and Townes, JJ., concur.