Opinion
2002-10760.
December 1, 2003.
In an action to recover damages for personal injuries, the defendant Segundo Rodriguez appeals from an order of the Supreme Court, Queens County (Dollard, J.), dated September 30, 2002, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Cheven, Keely Hatzis, New York, N.Y. (Stacy R. Seldin of counsel), for appellant.
Corpina, Piergrossi, Overzat Klar, LLP (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Christopher J. Crawford and Brian J. Isaac] of counsel), for respondent.
Before: HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The appellant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957; Rainey v. Smith, 300 A.D.2d 383; Grant v. Heli Trucker, 294 A.D.2d 538). The affirmation of the plaintiff's treating physician submitted in opposition to the motion quantified initial and final limitations of motion to the plaintiff's cervical and lumbar spine. The physician's opinion was supported by, inter alia, evidence of disc bulges at C3-4 and C4-5. While the plaintiff's physician improperly relied upon an unsworn magnetic resonance imaging (hereinafter MRI) report prepared by the plaintiff's radiologist, a sworn MRI report revealing disc bulges in the plaintiff's cervical spine was initially submitted by the appellant and was properly before the court ( see Khalil v. Morris, 304 A.D.2d 530, 531; Raso v. Statewide Auto Auction, 262 A.D.2d 387). The physician described the nature of the treatment and concluded that the plaintiff's injuries were traumatically caused by the subject motor vehicle accident. This evidence was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a permanent consequential limitation of motion to her spine ( see Balanta v. Stanlaine Taxi Corp., 307 A.D.2d 1017; Lefkowitz v. Salas, 266 A.D.2d 356; McVey v. Collins, 262 A.D.2d 462).
RITTER, J.P., SMITH, FRIEDMANN, H. MILLER and CRANE, JJ., concur.