The neurologist further found that the injured plaintiff's neck had "decreased range of movements to extension". A bulging disc may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Langford v. Jewett Transp. Serv., 271 A.D.2d 412). The defendants failed to demonstrate that the bulging discs were not causally related to the subject accident (see, Chaplin v. Taylor, 273 A.D.2d 188). Accordingly, the defendants failed to establish a prima facie case for judgment as a matter of law (see, Langford v. Jewett Transp. Serv. supra; Faruque v. Ponce, 259 A.D.2d 464; Rosmarin v. Lamontanaro, 238 A.D.2d 567; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437).
These reports revealed the existence of several bulging discs in her spine. Accordingly, the defendants failed to establish a prima facie case that the plaintiff Anita Conte Langford's injuries were not serious within the meaning ofInsurance Law § 5102(d) (see, Faruque v. Ponce, 259 A.D.2d 464;Rosmarin v. Lamontanaro, 238 A.D.2d 567; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437).
ORDERED that the order is affirmed, with costs. The Supreme Court properly denied the defendant's motion as he failed to establish a prima facie case that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102 Ins.(d) (see, Belmonte v. Collins, 261 A.D.2d 496; Rosmarin v. Lamontanaro, 238 A.D.2d 567; Mendola v. Demetres, 212 A.D.2d 515). O'BRIEN, J.P., ALTMAN, FRIEDMANN, McGINITY, and SMITH, JJ., concur.
In support of their motions for summary judgment, the defendants submitted, inter alia, a report prepared by the plaintiff's radiologist which stated that a magnetic resonance image taken of the plaintiff's lumbar spine four days after the accident revealed "[d]esiccation * * * at the L5-S1 level" and "[b]ulging to the L5-S1 intervertebral disc". They further submitted the medical reports of the plaintiff's own treating orthopedist which specified the degree of limitation in the range of motion of the plaintiff's lumbar and cervical spines and asserted that these injuries are "causally related" to the subject accident and are permanent. Accordingly, the defendants' respective motion papers failed to establish a prima facie case that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102(d) (see, Moreno v. Delcid, 262 A.D.2d 464; [2d Dept., June 14, 1999]; Faruque v. Ponce, 259 A.D.2d 464; [2d Dept., Mar. 1, 1999];Rosmarin v. Lamontanaro, 238 A.D.2d 567; Thomas v. Joyner, 237 A.D.2d 347). MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.
The court's limitation of the defendants' cross-examination of the chiropractor upon its determination that the evidence was not probative of the witness's credibility was not an improvident exercise of discretion ( see, Feldsberg v. Nitschke, 49 N.Y.2d 636). Finally, contrary to the respondent's contention, although this Court earlier affirmed the denial of the defendants' motion for summary judgment ( see, Rosmarin v. Lamontanaro, 238 A.D.2d 567), this appeal by the defendants, challenging the sufficiency of the plaintiff's proof of serious injury at trial, is not frivolous and does not warrant the imposition of a sanction. The defendants predicated this appeal upon specifically articulated challenges to the plaintiff's proof at trial, which varied in certain material respects from the evidence she submitted in opposition to the defendants' motion for summary judgment.
The radiologist's report concluded that a magnetic resonance image taken of the plaintiff's lumbar spine approximately one month after the accident revealed the existence of a small central L4-5 disc herniation ( see, Mattei v. Kennedy, 243 A.D.2d 690; Flanagan v. Hoeg, 212 A.D.2d 756). The report prepared by the plaintiff's treating physician provided objective evidence of the degree of the limitation of use of the plaintiff's back and right leg. Accordingly, the defendants' motion papers failed to make out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Gaddy v. Eyler, 79 N.Y.2d 955; Rosmarin v. Lamontanaro, 238 A.D.2d 567; Mendola v. Demetres, 212 A.D.2d 515). The subsequent sworn affirmation of the plaintiff's treating orthopedic surgeon submitted in opposition to the defendants' motions, which stated the degree of limitation of use of the plaintiff's lower back, its duration, and that it was causally related to the subject accident, served only to underscore the defendants' failure of proof ( see, Blusiewicz v. Comeau, 212 A.D.2d 657).
Ordered that the order is affirmed, with one bill of costs. In support of their motions for summary judgment, the appellants submitted, inter alia, reports prepared by the respondent's radiologist which stated that magnetic resonance images taken of the respondent's cervical and lumbar spines approximately two months after the accident revealed the existence of bulging discs at C3-4 and L5-S1. Accordingly, the appellants' respective motion papers failed to establish a prima facie case that the respondent's injuries were not serious within the meaning of Insurance Law § 5102 (d) ( see, Thomas v. Joyner, 237 A.D.2d 347; Rosmarin v. Lamontanaro, 238 A.D.2d 567; Flanagan v. Hoeg, 212 A.D.2d 756). Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that there is an issue of fact as to whether the plaintiffs sustained serious injuries within the meaning of Insurance Law § 5102 (d) ( see, e.g., Stark v. Amadio, 239 A.D.2d 569; Rosmarin v. Lamontanaro, 238 A.D.2d 567; Flanagan v. Hoeg, 212 A.D.2d 756). Rosenblatt, J. P., O'Brien, Sullivan, Krausman and Florio, JJ., concur.
Ordered that the order is reversed, on the law, with one bill of costs to the respondents appearing separately and filing separate briefs, and the motions are denied. The defendants' motion papers failed to establish a prima facie case that the injured plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) ( see, Rosmarin v. Lamontanaro, 238 A.D.2d 567; Flanagan v. Hoeg, 212 A.D.2d 756). Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.
It is clear that a disc herniation may constitute a "serious injury" ( see, Cacaccio v. Martin, 235 A.D.2d 384) and, based on the medical reports submitted by plaintiff, we cannot say as a matter of law that plaintiff has not suffered a serious injury ( see, Licari v. Elliott, 57 N.Y.2d 230, 238). Therefore, since plaintiff's evidence has created a triable issue of fact, defendant was not entitled to summary judgment ( see, Rosmarin v. Lamontanaro, 238 A.D.2d 567; Steuer v. DiDonna, 233 A.D.2d 494; Flanagan v. Hoeg, 212 A.D.2d 756). We affirm Supreme Court's denial of plaintiff's cross motion since our review of the record indicates evidence sufficient to establish a triable issue as to whether the accident was solely the result of defendant's negligence ( see, Krajewski v. Rosinski, 212 A.D.2d 886).