CHAPLIN v. TAYLOR (2000)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated July 7, 1999, which denied their motion, inter alia, 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, with costs.

 The Supreme Court properly denied the defendants' motion.   A Magnetic Resonance Imaging of the plaintiff's cervical spine and lower back shows a posterior herniated disc at C4-5. 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;  Boehm v. Estate of Mack, 255 A.D.2d 749, 680 N.Y.S.2d 732).   The defendants failed to demonstrate that the herniation was not causally related to the subject accident.   Accordingly, the defendants failed to make a prima facie case for judgment as a matter of law.   Under these circumstances, we need not consider whether the plaintiff'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 .