Majority
p. 337Patricia Boland, Plaintiff, v Dig America, Inc., et al., Defendants. (Action No. 1.) Christopher M. Grabe, Respondent, v Robert S. Lopilato et al., Appellants. (Action No. 2.) [717 NYS2d 205]
—In an action to recover damages for personal injuries, the defendants in Action No. 2 appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated March 8, 2000, which denied their motion for summary judgment dismissing the complaint in Action No. 2 on the ground that the plaintiff in that action 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 appellants’ motion.
p. 338
In support of their motion, the appellants submitted proof that a magnetic resonance imaging of the plaintiffs cervical spine showed a “posterior herniation of the C5-6 intervertebral disc.” A disc herniation may constitute a serious injury within the meaning of the Insurance Law (see, Flanagan v Hoeg, 212 AD2d 756 , 757). The appellants failed to demonstrate that the herniation was not related to the subject accident (see, Chaplin v Taylor, 273 AD2d 188 ). Accordingly, the appellants failed to make out a prima facie case for judgment as a matter of law. Under these circumstances, we need not consider whether the respondent’s papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437 ). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.
Cases cited
- Flanagan v. Hoeg 212 AD2d 756 at 757 p. 338
- Mariaca-Olmos v. Mizrhy 226 AD2d 437 p. 338