Opinion
August 15, 1994
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the appeal from the order dated December 14, 1992, is dismissed; and it is further,
Ordered that the appeal from the judgment entered February 9, 1993, is dismissed, as that judgment was superseded by the order dated April 7, 1993, made upon reargument; and it is further,
Ordered that the order dated April 7, 1993, is reversed insofar as appealed from, on the law, the order dated December 14, 1992, and the judgment are vacated, the defendants' motions for summary judgment are denied, and the complaint is reinstated; and it is further,
Ordered that the plaintiff is awarded one bill of costs, payable by the respondents appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from that order are brought up for review and have been considered on the appeal from the order made upon reargument (CPLR 5501 [a] [1]).
The plaintiff allegedly suffers from spondylolysis, which, upon reargument, the plaintiff's chiropractor characterized as a fracture. Thus, an issue of fact exists as to whether the plaintiff suffered a "serious injury" within the meaning of Insurance Law § 5102 (d). Accordingly, the court erred in awarding summary judgment to the defendants (see, Insurance Law § 5104 [a]; Licari v. Elliott, 57 N.Y.2d 230). Sullivan, J.P., Lawrence, Pizzuto and Joy, JJ., concur.