HINES v. SWIFT TRANSPORTATION CO INC (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated March 19, 2001, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she 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.

 Contrary to the Supreme Court's conclusion, the defendants failed to establish their prima facie entitlement to summary judgment dismissing the complaint (see, CPLR 3212[b] ).   In support of their motion, the defendants submitted evidence indicating that the plaintiff exhibited a central posterior subligamentous herniation of the nucleus pulposus at L4-L5. A disc herniation may constitute a serious injury within the meaning of the Insurance Law (see, Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853;  Boehm v. Estate of Mack, 255 A.D.2d 749, 680 N.Y.S.2d 732).   The conclusory assertions of the defendants' expert failed to demonstrate that the herniation was not causally related to the subject accident (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465).   Accordingly, the motion for summary judgment should have been denied.