DeVeglio v. Oliveri , 716 N.Y.S.2d 337 ( 2000 )

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 10, 2000, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

In support of their motion for summary judgment, the defendants submitted the initial magnetic resonance imaging report of the injured plaintiffs lumbar spine showing herniated discs at L3-4 and L4-5. In contrast, upon reviewing the same film, the defendants’ medical experts concluded that the injured plaintiffs lumbar spine showed signs of degenerative disc disease. By submitting contradictory medical proof on the nature of the injury sustained by the injured plaintiff, the defendants failed to establish that they were entitled to summary judgment as a matter of law.

Under these circumstances, it is not necessary to consider whether the plaintiffs’ papers in opposition to the defendants’ motion were sufficient to raise a triable issue of fact (see, Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438). Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.