MARTIN v. William Burrows, appellant. (2000)

In an action to recover damages for personal injuries, the defendant William Burrows appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered November 1, 1999, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

In support of his motion for summary judgment, the appellant submitted, inter alia, a radiology report stating that X-rays of the plaintiff's cervical spine taken on the day of the accident revealed some narrowing of the intervertebral space of C5-6 and C6-7.   In addition, he submitted the affirmed medical reports of his examining physician stating that Magnetic Resonance Imagings of the plaintiff's cervical spine taken one year after the accident revealed, among other things, a central disc bulge at the C4-5 level and specifying the degree of limitation in the range of motion in the plaintiff's cervical and lumbosacral spines.   The appellant's submissions also indicated an issue of fact as to whether this accident aggravated or rendered symptomatic the plaintiff's degenerative changes in his neck and back (see, Spain v. New York City Tr. Auth., 265 A.D.2d 319, 696 N.Y.S.2d 71;  Rut v. Grigonis, 214 A.D.2d 721, 625 N.Y.S.2d 633).   Accordingly, the appellant's motion papers failed to establish, prima facie, that the injuries sustained by the plaintiff were not serious within the meaning of Insurance Law § 5102(d) (see, Merle v. A Rebate Rent A Car II Corp., 266 A.D.2d 438, 698 N.Y.S.2d 879;  Dillon v. Thomas, 266 A.D.2d 183, 697 N.Y.S.2d 336;  Faruque v. Ponce, 259 A.D.2d 464, 686 N.Y.S.2d 65;  Cesar v. Felix, 181 A.D.2d 852, 581 N.Y.S.2d 411).

MEMORANDUM BY THE COURT.