MURPHY v. DEMAS (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated December 13, 1999, as granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Michael Murphy did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated.

In support of her motion for summary judgment, the defendant submitted the report of Dr. Marc A. Berezin, an orthopedic surgeon, evaluating a magnetic resonance image of the injured plaintiff's lumbosacral spine which showed a disc herniation at L4-5 and disc bulges at L4-5 and L5-S1 (see, Boehm v. Estate of Mack, 255 A.D.2d 749, 680 N.Y.S.2d 732;  Flanagan v. Hoeg, 212 A.D.2d 756, 757, 624 N.Y.S.2d 853).   Dr. Berezin also examined the injured plaintiff and found some loss of range of motion in the injured plaintiff's back.   The defendant failed to adequately demonstrate that the herniation was not causally related to the subject accident.   Accordingly, the defendant failed to make a prima facie case for judgment as a matter of law, and the Supreme Court should have denied the motion for summary judgment dismissing the complaint (see, Thomas v. Joyner, 237 A.D.2d 347, 655 N.Y.S.2d 420;  Mendola v. Demetres, 212 A.D.2d 515, 622 N.Y.S.2d 309).

MEMORANDUM BY THE COURT.