Summary
In Klimis v. Lopez (290 AD2d 538), the defendants' neurological medical expert acknowledged that an MRI of the injured plaintiff reported a disc herniation at L4-5, and that the injured plaintiff could only flex his lower back to approximately 50% of normal.
Summary of this case from Kearse v. New York City Transit AuthorityOpinion
2001-04657
Submitted January 9, 2002.
January 28, 2002.
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).
Jaffe Nohavicka, New York, N.Y. (Stacey R. Seldin of counsel), for appellants.
Latos Latos DiPippo, P.C., Astoria, N.Y. (Peter Latos of counsel), for respondents.
Before: DAVID S. RITTER, ACTING P.J., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, HOWARD MILLER, SANDRA L. TOWNES, JJ.
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 A.D.2d 188; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266), or that it did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Volozhinets v. DeHaven, 286 A.D.2d 437; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437; Flanagan v. Hoeg, 212 A.D.2d 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 A.D.2d 368, 369; Voytek Technology v. Rapid Access Consulting, 279 A.D.2d 470). Under these circumstances, we need not consider whether the plaintiffs' papers were sufficient to raise a triable issue of fact (see, Boland v. Dig Am., 277 A.D.2d 337).
RITTER, ACTING P.J., FEUERSTEIN, O'BRIEN, H. MILLER and TOWNES, JJ., concur.