Nejat v. Alvi

—In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Klein, J.), entered March 27, 2002, as denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

In support of his motion for summary judgment dismissing the complaint, the defendant submitted a magnetic resonance imaging report of the plaintiffs lumbar spine that showed a disc herniation at L5-S1. Contrary to the defendant’s contention, he failed to submit sufficient evidence to establish as a matter of law that this injury was not causally related to the accident in question or that it was not a serious injury within the meaning of Insurance Law § 5102 (d). Thus, the defendant failed to meet his burden of establishing his entitlement to judgment as a matter of law (see Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756). Under these circumstances, we need not consider whether the plaintiffs papers in opposition to the defendant’s motion were sufficient to raise a triable issue of fact (see Mariaca-Olmos v Mizrhy, supra). Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.