KHALIL v. MORRIS (2003)

In an action to recover damages for personal injuries, the defendants William Morris and Margaret Morris appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Milano, J.), dated June 21, 2002, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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.

The appellants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   In opposition to the motion for summary judgment, the plaintiff established that triable issues of fact exist by submitting the affirmed medical report of his treating physician which indicated limitations in the range of motion of his cervical and lumbar spines, and their duration (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   The physician's opinion was supported by, inter alia, magnetic resonance imaging reports which were initially submitted by the appellants and were properly before the court (see Raso v. Statewide Auto Auction, 262 A.D.2d 387, 691 N.Y.S.2d 158).