Kowalek v. Picariello

Jun 2, 2003
Versions:306 A.D.2d 249
760 N.Y.S.2d 357

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated July 17, 2002, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The Supreme Court erred in granting the defendants’ motion for summary judgment dismissing the complaint. A magnetic resonance imaging (hereinafter MRI) of the plaintiff’s lumbar spine, taken in March 2000, showed a central disc herniation at the L5-S1 level, which impinged on the thecal sac. A disc herniation may constitute a serious injury within the meaning of the Insurance Law (see Chaplin v Taylor, 273 AD2d 188 [2000]). The defendants, who were aware of the MRI report, failed to address its findings, let alone demonstrate that the herniation was not causally related to the subject accident. Accordingly, the defendants failed to establish a prima facie case for judgment as a matter of law. Under these circumstances, we need not consider whether the plaintiff’s papers raised a triable issue of fact (see Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]). Altman, J.P., Krausman, Goldstein, H. Miller and Crane, JJ., concur.