BOLAND v. DIG AMERICA INC (2000)

In an action to recover damages for personal injuries, the defendants in Action No. 2 appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated March 8, 2000, which denied their motion for summary judgment dismissing the complaint in Action No. 2 on the ground that the plaintiff in that action 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 appellants' motion.   In support of their motion, the appellants submitted proof that a magnetic resonance imaging of the plaintiff's cervical spine showed a “posterior herniation of the C5-6 intervertebral disc”.   A disc herniation may constitute a serious injury within the meaning of the Insurance Law (see, Flanagan v. Hoeg, 212 A.D.2d 756, 757, 624 N.Y.S.2d 853).   The appellants failed to demonstrate that the herniation was not related to the subject accident (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465).   Accordingly, the appellants failed to make out a prima facie case for judgment as a matter of law.   Under these circumstances, we need not consider whether the respondent's papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).

MEMORANDUM BY THE COURT.