KLIMIS v. LOPEZ

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Supreme Court, Appellate Division, Second Department, New York.

George KLIMIS, et al., Respondents, v. Ismael LOPEZ, et al., Appellants.

Decided: January 28, 2002

DAVID S. RITTER, ACTING P.J., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, HOWARD MILLER and SANDRA L. TOWNES, JJ. Jaffe & Nohavicka, New York, N.Y. (Stacey R. Seldin of counsel), for appellants. Latos Latos & DiPippo, P.C., Astoria, N.Y. (Peter Latos of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated April 25, 2001, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff George Klimis did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

 In support of their motion for summary judgment, the defendants submitted evidence that the injured plaintiff, George Klimis, was suffering from a disc herniation at L4/5 and limitation of motion in his lower back. The defendants failed to demonstrate through admissible evidence that the herniation was not related to the subject accident (see, Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765), or that it did not constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Volozhinets v. DeHaven, 286 A.D.2d 437, 729 N.Y.S.2d 510; Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 640 N.Y.S.2d 604; Flanagan v. Hoeg, 212 A.D.2d 756, 757, 624 N.Y.S.2d 853). Furthermore, the affirmed magnetic resonance imaging report of the defendants' radiologist was improperly submitted for the first time in their reply papers, and therefore, we decline to consider it (see, CPLR 2214; Feratovic v. Lun Wah, Inc., 284 A.D.2d 368, 369, 725 N.Y.S.2d 892; Voytek Technology v. Rapid Access Consulting, 279 A.D.2d 470, 719 N.Y.S.2d 112). Under these circumstances, we need not consider whether the plaintiffs' papers were sufficient to raise a triable issue of fact (see, Boland v. Dig Am., 277 A.D.2d 337, 717 N.Y.S.2d 205).

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