LEWIS v. FIDELIO (1999)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 12, 1998, as, upon granting reargument of the defendants' prior motion for summary judgment, which was denied by order entered November 5, 1997, adhered to the original determination.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In opposition to the defendants' motion, the plaintiff submitted a physician's affidavit indicating that, as a result of the accident, the plaintiff sustained a serious injury.   The physician stated that the plaintiff sustained “disc damage, without herniation, at L 3-L 4 and L 5-S1”, resulting in back pain which “is most severe with prolonged sitting which, unfortunately, he has to do extensively because of his occupation as a police officer”.   This established that there is an issue of fact as to whether the plaintiff sustained 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;  Bocci v. Turkowitz, 255 A.D.2d 476, 680 N.Y.S.2d 637).

MEMORANDUM BY THE COURT.