Pulos v. Schait

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Henry, J.), entered May 24, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that he 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 defendant established prima facie entitlement to summary judgment (see Toure v Avis Rent A Car Sys., 98 NY2d 345 ; Gaddy v Eyler, 79 NY2d 955 ). In opposition to the motion, the plaintiff submitted an affirmation from the radiologist who supervised magnetic resonance imaging testing which revealed that he has a herniated disc in the lumbosacral spine. Also, he submitted an affirmed report of an osteopathic physician specifying the decreased range of motion in his lumbar spine, noting findings of muscle spasm, and stating that his injuries are permanent and causally related to the motor vehicle accident in which he was injured. The physician’s opinion, supported by objective evidence, was sufficient to raise a triable issue of fact (see Toure v Avis Rent A Car Sys., supra). Consequently, the Supreme Court erred in granting the defendant’s motion for summary judgment dismissing the complaint. Altman, J.P., Smith, Luciano, Adams and Cozier, JJ., concur.