Khalilullah Waziri, Appellant, v. Gregory Small, Respondent

Khalilullah Waziri, Appellant, v Gregory Small, Respondent. [713 NYS2d 702] [MAJORITY] In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated December 22, 1999, which granted the defendant’s 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 reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The Supreme Court improperly granted the defendant’s motion. The plaintiffs expert found that a Magnetic Resonance Imaging of the plaintiffs cervical spine performed on August 26, 1996, approximately five weeks after the subject accident, revealed a herniated disc at C6-C7. This raised a triable issue of fact as to whether the plaintiff had sustained a serious injury within the meaning of the Insurance Law (see, Chaplin v Taylor, 273 AD2d 188; Flanagan v Hoeg, 212 AD2d 756, 757). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.