KRASKA v. PULEO (2002)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated August 17, 2001, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the injured plaintiff 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 defendant failed to establish a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  In support of his motion for summary judgment the defendant submitted medical reports from the injured plaintiff's examining physician, which showed that she sustained limitations of motion in her neck.   Furthermore, a magnetic resonance image report of the injured plaintiff's cervical spine, also submitted by the defendant, showed a disc bulge at C5-C6. The defendant failed to demonstrate that the plaintiff's neck injury was not serious or was not causally related to the subject accident (see Urbanski v. Mulieri, 287 A.D.2d 710, 732 N.Y.S.2d 89;  Trantel v. Rothenberg, 286 A.D.2d 325, 729 N.Y.S.2d 158;  Kosciolek v. Jianguo Chen, 283 A.D.2d 554, 725 N.Y.S.2d 69;  Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470, 724 N.Y.S.2d 635;  Murphy v. Demas, 277 A.D.2d 208, 716 N.Y.S.2d 672;  Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853).   Accordingly, the defendant failed to make out a prima facie case of his entitlement to judgment as a matter of law, and we need not consider whether the plaintiffs' opposition to the motion was sufficient to raise a triable issue of fact (see Trantel v. Rothenberg, supra).