NEWCOMB v. LESLIE (2002)

Order, Supreme Court, Bronx County (Paul Victor, J.), entered on or about April 10, 2002, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although defendants established a prima facie case that plaintiff Mark Newcomb did not suffer a serious injury within the meaning of Insurance Law § 5102(d) by their submission of the affirmed reports of an examining orthopedic surgeon and neurologist, plaintiffs raised an issue of fact by their submission of an MRI report indicating a herniated disc and the report of plaintiff's treating physician providing objective test results to substantiate plaintiff's subjective complaints of pain (see Noble v. Ackerman, 252 A.D.2d 392, 675 N.Y.S.2d 86;  see also Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197).