Esony v. Benitez

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rings County (Ruditzky, J.), dated February 21, 2003, which granted the defendant’s 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). Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. A magnetic resonance imaging of the plaintiffs lumbosacral spine showed “a broad based and paracentral disc herniation at the L4-5 level.” However, the defendant failed to demonstrate that the herniation was not causally related to the subject accident, or that it was not a serious injury within the meaning of Insurance Law § 5102 (d) (see Shin v Torres, 295 AD2d 495 [2002]; Franca v Parisi, 298 AD2d 554 [2002]; Junco v Ranzi, 288 AD2d 440 [2001]; Papadonikolakis v First Fid. Leasing Group, 283 AD2d 470 [2001]). Accordingly, the defendant failed to establish a prima facie case for judgment as a matter of law. Under these circumstances, we need not consider whether the plaintiffs’ papers were sufficient to raise a triable issue of fact (see Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). Florio, J.P., Krausman, Luciano, Townes and Rivera, JJ., concur.