Opinion
2002-08657
Submitted May 28, 2003.
November 17, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated July 31, 2002, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Gersowitz, Libo Korek, P.C., New York, N.Y. (Andrew L. Libo and Jeff S. Korek of counsel), for appellant.
Theodore A. Stamas (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for respondent.
Before: DAVID S. RITTER, J.P., LEO F. McGINITY, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The defendant failed to establish her prima facie entitlement to summary judgment on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( see Gaddy v. Eyler, 79 N.Y.2d 955). The defendant's examining orthopedist indicated in his affirmation, inter alia, that he reviewed certain sworn and improperly sworn magnetic resonance imaging reports of the plaintiff's cervical and lumbosacral spine, which revealed disc herniations at C4-5 and C6-7, a disc bulge at C5-6, and a herniation at L4-L5. However, the examining orthopedist failed to demonstrate in his affirmation that the plaintiff's injuries were not causally related to the accident, or that they were not serious within the meaning of Insurance Law § 5102(d) ( see Shin v. Torres, 295 A.D.2d 495; Franca v. Parisi, 298 A.D.2d 554; Junco v. Ranzi, 288 A.D.2d 440; Papadonikolakis v. First Fid. Leasing Group, 283 A.D.2d 470). Therefore, the grant of summary judgment to the defendant was improper. Accordingly, we need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact ( see Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437).
RITTER, J.P., McGINITY, TOWNES and COZIER, JJ., concur.