COSCIA v. 938 TRADING CORP (2001)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated November 17, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Phyllis Coscia did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly denied the defendants' motion for summary judgment.   In support of their motion, the defendants submitted evidence that the plaintiff Phyllis Coscia was suffering from restrictions of motion in her lumbar spine.   Furthermore, the defendants submitted contradictory proof as to whether the injured plaintiff's lumbar spine condition was caused by the subject accident or a degenerative disease (see, Julemis v. Gates, 281 A.D.2d 396, 721 N.Y.S.2d 665;  DeVeglio v. Oliveri, 277 A.D.2d 345, 716 N.Y.S.2d 337).   Accordingly, the defendants failed to establish a prima facie case that the injuries allegedly sustained by Phyllis Coscia were not serious within the meaning of Insurance Law § 5102(d) (see, Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604;  Mendola v. Demetres, 212 A.D.2d 515, 622 N.Y.S.2d 309).   Under these circumstances, it is not necessary to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, supra).