Opinion
Submitted September 6, 2000
October 2, 2000.
In an action to recover damages for personal injuries etc., the defendant appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated July 12, 1999, which denied his motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Jaffe Nohavicka, New York, N.Y. (Stacy R. Seldin of counsel), for appellant.
Oshman, Helfenstein, Bernstein, Mirisola Schwartz, LLP, New York, N.Y. (Ephrem Wertenteil of counsel), for respondents.
Before: DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
An affirmation from the defendant's examining orthopedist revealed that the plaintiff sustained herniated discs as a result of the accident at issue and suffered from a quantified limitation of motion nearly four years after the accident. Thus, the defendant failed to submit sufficient evidence to establish as a matter of law that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see, Chaplin v. Taylor, A.D.2d [2d Dept., June 5, 2000]; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437; Flanagan v. Hoeg, 212 A.D.2d 756). Under these circumstances, we need not consider whether the plaintiffs' papers were sufficient to raise a triable issue of fact (see, Chaplin v. Taylor, supra; Mariaca-Olmos v. Mizrhy, supra).