Opinion
2003-01975.
December 22, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated February 21, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Wittenstein Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for appellant.
Cheven, Keely Hatzis, New York, N.Y. (Stacy R. Seldin of counsel), for respondent.
Before: SANDRA L. TOWNES and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
A magnetic resonance imaging of the plaintiff's lumbosacral spine showed "a broad based and paracentral disc herniation at the L4-5 level." However, the defendant failed to demonstrate that the herniation was not causally related to the subject accident, or that it was not a serious injury within the meaning of Insurance Law § 5102(d) ( see Shin v. Torres, 295 A.D.2d 495; Franca v. Parisi, 298 A.D.2d 554; Junco v. Ranzi, 288 A.D.2d 440; Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470). Accordingly, the defendant failed to establish a prima facie case for judgment as a matter of law. Under these circumstances, we need not consider whether the plaintiffs' papers were sufficient to raise a triable issue of fact ( see Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437).
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.