Opinion
3209.
Decided March 23, 2004.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 9, 2003, which denied their motion for summary judgment dismissing the complaint on the ground that plaintiffs did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.
James J. Brady, for Plaintiffs-Respondents.
David Holmes, for Defendants-Appellants.
Before: Tom, J.P., Andrias, Ellerin, Gonzalez, JJ.
Defendants make no demonstration that the motion court substantively erred when it found plaintiffs' opposition to their summary judgment motion sufficient to raise triable issues as to whether plaintiffs sustained serious injuries in the underlying automobile accident. Rather, they contend that plaintiffs' opposition papers should have been disregarded by the motion court because they were not submitted within the time frame prescribed for such submissions ( see CPLR 2214[b]). This contention, however, was not raised in the motion court and is consequently unpreserved for our review. In any case, even if the contention were properly before us and possessed merit, an affirmance of the motion court's denial of defendants' summary judgment motion would still be required since defendants failed to meet their burden as movants to demonstrate prima facie that plaintiffs had not sustained serious injuries within the meaning of Insurance Law § 5102(d). The medical reports of plaintiffs' treating physician and medical records, including MRI reports, submitted by defendants in putative support of their motion document plaintiffs' treatment during the year following the accident and contain significant findings objectively indicative of serious injury attributable to the accident that are not dispositively addressed in the affirmations of defendants' experts ( see Lowell v. Peters, 3 A.D.3d 778, 2004 N.Y. App. Div LEXIS 625; Arornov v. Leybovich, 3 A.D.3d 511, 2004 N.Y. App. Div LEXIS 513).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.