Frasier v. James

—In an action to recover damages for personal injuries, the defendants Tina Hande and Christopher G. Hande appeal from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 31, 2002, as 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). Ordered that the order is affirmed insofar as appealed from, with costs. The appellants failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affirmation of the appellants’ examining orthopedist failed to demonstrate through objective medical evidence that the disc herniation and limitation of motion in the plaintiff’s cervical spine were not causally related to the subject motor vehicle accident (see Franca v Parisi, 298 AD2d 554 [2002]; Hussein v Littman, 287 AD2d 543 [2001]; Volozhinets v DeHaven, 286 AD2d 437 [2001]; Papadonikolakis v First Fid. Leasing Group, 283 AD2d 470 [2001]). Since the appellants failed to establish, prima facie, their entitlement to judgment as a matter of law, the sufficiency of the papers in opposition need not be considered (see Chaplin v Taylor, 273 AD2d 188 [2000]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [718] [1996]). Santucci, J.P., Krausman, McGinity, Schmidt and Crane, JJ., concur.