JULEMIS v. GATES (2001)

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 1, 2000, as denied his cross motion for summary judgment dismissing the complaint 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 Supreme Court properly denied the defendant's cross motion.   The defendant submitted contradictory proof as to whether the plaintiff's cervical spine condition was caused by the accident involving the defendant's vehicle, a degenerative disease, or a previous accident (see, DeVeglio v. Oliveri, 277 A.D.2d 345, 716 N.Y.S.2d 337), and the defendant failed to establish that none of the injuries allegedly sustained by the plaintiff constituted a serious injury within the meaning of Insurance Law § 5102(d).   Accordingly, the defendant failed to make a prima facie case for judgment as a matter of law (see, Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604).   Under these circumstances, it is not necessary to consider whether the plaintiff's papers in opposition to the defendant's cross motion were sufficient to raise a triable issue of fact (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465;  Mariaca-Olmos v. Mizrhy, supra).