BASMAJIAN v. WANG (2004)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Price, J.), dated October 31, 2003, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Anthony Basmajian 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.

The Supreme Court erred in granting the defendant's motion for summary judgment dismissing the complaint.   The defendant failed to make a prima facie showing that the plaintiff Anthony Basmajian (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  In support of his motion, the defendant submitted, inter alia, a report by a radiologist which summarized his findings upon reviewing a magnetic resonance image of the plaintiff's lumbar spine taken on February 21, 2001, approximately three months after the subject accident.   The radiologist found, among other things, a disc herniation with ventral impingement on the thecal sac at the L5-S1 region.   The defendant failed to demonstrate that the herniation was not causally related to the subject accident, or that the injury was not serious within the meaning of Insurance Law § 5102(d) (see Shin v. Torres, 295 A.D.2d 495, 496, 744 N.Y.S.2d 343).   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 A.D.2d 437, 438, 640 N.Y.S.2d 604).