HUSSEIN v. LITTMAN (2001)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gerard, J.), dated September 5, 2000, which granted the defendants' 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.

 In support of their motion for summary judgment dismissing the complaint, the defendants relied upon a report prepared by the treating chiropractor of the injured plaintiff which found the existence of bulging discs in his cervical spine.   A disc bulge may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853).   The defendants failed to demonstrate that the bulges were not causally related to the subject accident (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465).   Accordingly, the defendants failed to make out a prima facie case of their entitlement to judgment as a matter of law.   Under these circumstances, we need not consider the plaintiffs' opposing papers (see, Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).