Garver v. Ming Chao Lu

In an action to recover damages for personal injuries etc., the defendant appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated July 12, 1999, which denied his 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 affirmed, with costs.

An affirmation from the defendant’s examining orthopedist revealed that the plaintiff sustained herniated discs as a result of the accident at issue and suffered from a quantified limita*469tion of motion nearly four years after the accident. Thus, the defendant failed to submit sufficient evidence to establish as a matter of law that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756). Under these circumstances, we need not consider whether the plaintiffs’ papers were sufficient to raise a triable issue of fact (see, Chaplin v Taylor, supra; Mariaca-Olmos v Mizrhy, supra). Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.