ROSMARIN v. LAMONTANARO

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

Pamela ROSMARIN, Respondent, v. Robert LAMONTANARO, et al., Appellants.

Decided: April 28, 1997

Before MANGANO, P.J., and SULLIVAN, ALTMAN and McGINITY, JJ. James J. Thornton (Sweetbaum & Sweetbaum, Lake Success [Marshall D. Sweetbaum], of counsel), for appellants. Antin & Ehrlich, New York City (Jeffrey S. Antin, of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Posner, J.), dated October 4, 1996, which denied their motion pursuant to CPLR 3212 for summary judgment dismissing the complaint based on the plaintiff's failure to sustain a serious injury as defined by Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted reports prepared by their radiologist and the plaintiff's radiologist and chiropractor.   The reports of both radiologists concluded that a magnetic resonance image taken of the plaintiff's cervical spine approximately one month after the accident revealed the existence of bulging discs at three levels (see, Flanagan v. Hoeg, 212 A.D.2d 756, 624 N.Y.S.2d 853).   Further, the report prepared by the plaintiff's chiropractor provided objective evidence of the degree of the limitation of use of the plaintiff's cervical spine and its duration, thus raising a triable issue of fact as to whether she suffered a significant limitation (see, Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102).

The defendants' evidence thus failed to make out a prima facie case (see, CPLR 3212[b] ) that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).

MEMORANDUM BY THE COURT.

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