Summary
In Fauk v. Jenkins (301 AD2d 564), the Appellate Division, Second Department, reversed the trial court's granting of summary judgment dismissing the complaint.
Summary of this case from Simoneschi v. Dedicated Leasing Serv. LLCOpinion
2002-05327
Submitted December 11, 2002.
January 21, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated March 20, 2002, which granted the defendants' 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).
Melucci, Celauro Sklar, LLP, New York, N.Y. (Daniel Melucci of counsel), for appellant.
Goldman Grossman, New York, N.Y. (Eleanor R. Goldman of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
"Although a bulging or herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration" (Duldulao v. City of New York, 284 A.D.2d 296, 297; see also Monette v. Keller, 281 A.D.2d 523, 524). In this case, the defendants' medical expert, Dr. Lawrence Miller, a Board Certified orthopedic surgeon, examined the plaintiff and stated in his affirmed report that, inter alia, the plaintiff had full range of motion in the cervical spine, despite a magnetic resonance imaging (hereinafter MRI) report showing a bulging disc at the C4-C5 level. Furthermore, notwithstanding that the MRI of the plaintiff's right shoulder showed several tears, Dr. Miller found that the plaintiff could raise his arms above his head and behind his back. This proof was sufficient to establish a prima facie case that the plaintiff did not sustain a serious injury in the accident (see Duldulao v. City of New York, supra).
However, the affidavit of Dr. Leo Batash, which the plaintiff submitted in opposition to the motion, raised a triable issue of fact (see CPLR 3212[b]). That affidavit stated that the plaintiff suffered traumatically-induced bulging discs at the L2-L3, L3-L4, and L4-L5 regions of the lumbar spine and a herniated disc at the L5-S1 region, which were the cause of the plaintiff's pain and the reason the plaintiff had restricted motion of 25% to 30%. This conclusion was based, inter alia, on a review of an MRI report, which was also submitted. The plaintiff's evidence raised a triable issue of fact as to the existence of a serious injury, which is for the jury to determine (see Puma v. Player, 233 A.D.2d 308).
SANTUCCI, J.P., SMITH, GOLDSTEIN, H. MILLER and MASTRO, JJ., concur.