MOISEAU v. DUMAS WILLIAMS (2002)

In an action to recover damages for personal injuries, the plaintiff Gracia Moiseau appeals from an order of the Supreme Court, Queens County (Golar, J.), dated May 8, 2001, which granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted by him.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint insofar as asserted by Gracia Moiseau is reinstated.

In support of their motion for summary judgment dismissing the complaint insofar as asserted on behalf of the appellant Gracia Moiseau, the defendants submitted the affirmed medical report of their own examining physician which referred to magnetic resonance imaging reports of the appellant's lumbosacral and cervical spines revealing herniated discs at L4-5 and C5-6. The defendants did not demonstrate that these injuries were not causally related to the subject accident.   The defendants' examining physician did not state that the appellant suffered no limitation to the range of motion in his neck and back.   Thus, the defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see, Hussein v. Littman, 287 A.D.2d 543, 731 N.Y.S.2d 477;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Langford v. Jewett Transp. Serv., 271 A.D.2d 412, 706 N.Y.S.2d 435;  Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853).   Under these circumstances, we need not consider whether the appellant's papers in opposition to the motion were sufficient to raise a triable issue of fact (see, Chaplin v. Taylor, supra;  Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).