Opinion
01-08951
Submitted January 23, 2002
May 28, 2002.
In an action to recover damages for personal injuries, the defendants Ely E. Lehmann and Abraham Feldman appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated August 27, 2001, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Composto Fitzgerald, Brooklyn, N.Y. (Frank A. Composto and Robert E. Giovinazzi of counsel), for appellants.
Ronald J. Korybski, New York, N.Y., for respondent.
MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, LEO F. McGINITY, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Among the papers submitted in support of the appellants' motion for summary judgment was a report from their examining orthopedist which, inter alia, indicated that he reviewed a magnetic resonance image (hereinafter MRI) of the plaintiff's lumbar spine that revealed a disc herniation at L5-S1. The orthopedist concluded that "there is probable causality between the injuries sustained and the accident reported." The examining orthopedist also conducted objective tests which revealed that the plaintiff had certain limitations in her range of motion.
Contrary to the appellants' contention, the Supreme Court correctly denied their motion for summary judgment dismissing the complaint insofar as asserted against them. Since a disc herniation and limited range of motion based on objective findings may constitute evidence of a serious injury, the defendants failed to establish a prima facie case of their entitlement to judgment as a matter of law (see Lewis v. White, 274 A.D.2d 455; Chaplin v. Taylor, 273 A.D.2d 188; Grossman v. Wright, 268 A.D.2d 79, 84; O'Dol v. Malley, 245 A.D.2d 436; Risbrook v. Coronamos Cab Corp., 244 A.D.2d 397; Flanagan v. Hoag, 212 A.D.2d 756, 757; Kim v. Cohen, 208 A.D.2d 807). Accordingly, we need not consider the sufficiency of the plaintiff's opposition papers under these circumstances (see Chaplin v. Taylor, supra; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437).
ALTMAN, J.P., SMITH, KRAUSMAN, McGINITY and COZIER, JJ., concur.