Kosto v. Bonelli

Goldstein, J.,

dissents and votes to reverse the order appealed from and to deny the motions for summary judgment, with the following memorandum: On August 25, 1994, the *559plaintiff, then 19 years old, was a front-seat passenger in an automobile involved in an automobile accident. X-rays were taken of her back on August 30, 1994, and magnetic resonance imaging (hereinafter MRI) was performed on September 6, 1994.

The defendants, as movants for summary judgment, bore the initial burden of establishing their entitlement to judgment as a matter of law on the ground that the plaintiff had not sustained a “serious injury” as a result of the accident (see, Blusiewicz v Comeau, 212 AD2d 657). In support of their motions for summary judgment, they submitted sworn medical evidence that the MRI revealed “disc herniations at the L2-3 level”, and “dessication and posterior bulging of the intervertebral discs at L3-4, 4-5, and 5-1”. This constituted an “objective manifestation of physical injury”, satisfying the requirements of Insurance Law § 5102 (d) (Hawkey v Jefferson Motors, 245 AD2d 785; cf., Vignola v Varrichio, 243 AD2d 464).

One of the defendants’ doctors performed a recent medical evaluation of the plaintiff nearly two years after the accident, and diagnosed her as still suffering from “disc dessication, disc bulges”, resulting in low back pain, with occasional radiation to the left leg, with aggravation of symptoms after prolonged sitting, standing, or walking. However, the doctor nevertheless concluded that there was no evidence “of permanency related to the incident” of August 25, 1994, because this condition was “pre-existing”.

Another of the defendants’ doctors stated that the plaintiff’s disc condition was symptomatic of “a long standing and relative [sic] chronic degenerative condition” unrelated to the accident. However, he cast some doubt on the validity of his own theory when he acknowledged that such a degenerative pattern of disc disease was unusual in a person of the plaintiff’s relatively young age. He further acknowledged that there may have been exacerbation of the condition as a result of the accident when he stated that “I cannot differentiate whether there was exacerbation by trauma on a clinical basis or not”. Therefore, it appears that the defendants did not meet their initial burden of establishing entitlement to judgment as a matter of law (see, Hawkins v Foshee, 245 AD2d 1091).

In any event, the plaintiff, in opposition, submitted the affidavit of a licensed chiropractor, who performed neurological testing of the plaintiff shortly after the accident, reviewed the X-rays taken on August 30, 1994, and examined the results of the MRI. The plaintiff tested positive for a “disc lesion”. The chiropractor further noted that he observed no degenerative *560changes on the X-rays, and that “upon review of the plain film studies and MRI by the undersigned”, the plaintiff suffered from “no lumbar degenerative changes”. He further concluded that the plaintiffs condition was permanent and a direct result of the accident.

This Court has specifically held that the affidavit of a chiropractor stating that the plaintiff suffers from a permanent partial disability in the function of the lumbar spine based upon “objective orthopedic, neurological and chiropractic testing”, is sufficient to establish a triable issue of fact with regard to the plaintiffs allegation that she sustained a serious injury (see, Steuer v DiDonna, 233 AD2d 494; see also, Swarthout v Magee, 248 AD2d 796). The defendants’ contention that the plaintiffs herniated and bulging discs were solely the result of pre-existing degenerative changes was doubted by one of their own experts, and soundly refuted by the plaintiffs expert. The plaintiffs expert’s failure to refer to a recent examination of the plaintiff is not relevant here, since the issue in contention was whether there was evidence of a pre-existing condition in 1994 at the time of the accident. I further note that there was a recent examination by the defendants’ doctor which diagnosed the same condition.

Accordingly, the motions for summary judgment should have been denied.