WEST v. RIVERA (2001)

In an action to recover damages for personal injuries, the defendants Edgar Rivera and Logan Bus Co., Inc., appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated February 22, 2001, which 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, with costs.

The Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.   In support of their motion, the appellants submitted, inter alia, a report by a radiologist which summarized his findings upon reviewing a magnetic resonance image of the plaintiff's lumbar spine taken on October 22, 1997, approximately four months after the subject accident.   The radiologist found, inter alia, a left paracentral/posterolateral disc herniation at L5-S1. A disc herniation may constitute a serious injury within the meaning of the Insurance Law (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Flanagan v. Hoeg, 212 A.D.2d 756, 757, 624 N.Y.S.2d 853).   The radiologist also acknowledged that “the specific etiology of the disc herniation is indeterminate from this examination”.   As the appellants failed to demonstrate that the herniation was not causally related to the subject accident, they failed to make a prima facie demonstration of their entitlement to judgment as a matter of law.   Under these circumstances, we need not consider whether the plaintiff's papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).