Opinion
2002-1442 KC.
July 9, 2003.
Appeal by plaintiffs from an order of the Civil Court, Kings County (A. Schack, J.), dated September 11, 2002, which granted defendant's motion for summary judgment.
Order unanimously reversed without costs and defendant's motion for summary judgment denied.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
DECIDED
Defendant moved for summary judgment on the ground that the injured, infant plaintiff did not suffer a serious injury under Insurance Law¢ 5102 (d). In support thereof, defendant submitted reports by his doctors. One of the defendant's doctors referred to unsworn MRI reports showing a herniated disc at L4-L5, disc bulges at C4-C5, L3-L4 and L5-S1, as well as a torn meniscus of the right knee (see Pagano v. Kingsbury, 182 AD2d 268; see also Fragale v. Geiger, 288 AD2d 431). A diagnosis of a bulging or herniated disc, by itself, does not constitute a serious injury (Toure v. Avis Rent A Car Sys., 98 NY2d 345, 353). However, a diagnosis of a meniscus tear creates an issue of fact as to whether the injured plaintiff suffered a serious injury (see Papadonikolakis v. First Fid. Leasing Group, 283 AD2d 470). Thus, the defendant failed to establish a prima facie case for judgment as a matter of law (Lombardi v. Columbo, 259 AD2d 524). Under the circumstances, we need not consider whether the plaintiffs' papers in opposition to the motion were sufficient to raise a triable issue of fact (Chaplin v. Taylor, 273 AD2d 188).