SHORT v. MEZA (2005)

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered December 1, 2004, as denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

In relying on reports of doctors which indicated a possible disc herniation and diminution of range of motion causally related to the subject accident, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).  Accordingly, the Supreme Court properly denied the defendant's motion (see Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281;  Boone v. New York City Tr. Auth., 263 A.D.2d 463, 692 N.Y.S.2d 731;  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;  cf. Meely v. 4 G's Truck Renting Co., 16 A.D.3d 26, 789 N.Y.S.2d 277).