Opinion
2002-10017.
Decided December 15, 2003.
In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated August 28, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for appellant.
Litman Litman, P.C., New York, N.Y. (Jeffrey E. Litman of counsel), for respondent.
Before: SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it. A magnetic resonance imaging (hereinafter MRI) examination of the plaintiff's cervical spine taken in June 1996 showed bulging discs at the C4-5 and the C5-6 levels, which flattened the thecal sac. The appellant, who was aware of the MRI examination, failed to demonstrate that the bulges were not causally related to the subject accident or that the bulges were not serious within the meaning of Insurance Law § 5102(d). Accordingly, the appellant failed to establish a prima facie case for judgment as a matter of law ( see Shin v. Torres, 295 A.D.2d 495) . Under these circumstances, we need not consider whether the plaintiff's papers raised 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.