BELMONTE v. COLLINS (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 18, 1998, which granted the defendants' respective motions for summary judgment dismissing the complaint on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motions are denied, and the complaint is reinstated.

In support of their respective motions for summary judgment, the defendants submitted, inter alia, reports prepared by the plaintiff's radiologist and a treating physician.   The radiologist's report concluded that a magnetic resonance image taken of the plaintiff's lumbar spine approximately one month after the accident revealed the existence of a small central L4-5 disc herniation (see, Mattei v. Kennedy, 243 A.D.2d 690, 664 N.Y.S.2d 572;  Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853).   The report prepared by the plaintiff's treating physician provided objective evidence of the degree of the limitation of use of the plaintiff's back and right leg.   Accordingly, the defendants' motion papers failed to make out a prima facie case 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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Rosmarin v. Lamontanaro, 238 A.D.2d 567, 656 N.Y.S.2d 382;  Mendola v. Demetres, 212 A.D.2d 515, 622 N.Y.S.2d 309).

The subsequent sworn affirmation of the plaintiff's treating orthopedic surgeon submitted in opposition to the defendants' motions, which stated the degree of limitation of use of the plaintiff's lower back, its duration, and that it was causally related to the subject accident, served only to underscore the defendants' failure of proof (see, Blusiewicz v. Comeau, 212 A.D.2d 657, 622 N.Y.S.2d 773).

MEMORANDUM BY THE COURT.