Plaintiff appeals from that portion of an order of the Civil Court, Bronx County, entered April 1, 2004 (Wilma Guzman, J.) which granted defendant Burrowes' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury (Insurance Law §5102[d]).

PER CURIAM:

Order entered April 1, 2004 (Wilma Guzman, J.) to the extent appealed, reversed, with $10 costs, defendant's motion for summary judgment denied, and complaint reinstated.

Defendant failed to submit proof sufficient to meet his burden of establishing entitlement to summary judgment on the ground that plaintiff did not suffer a serious physical injury within the meaning of Insurance Law §5102(d) (see Webb v. Johnson, 13 AD3d 54 [2004]). Defendant's experts acknowledged MRI reports showing multiple bulging discs and electro diagnostic testing indicating radiculopathy, and moreover, made positive clinical findings upon their examination of plaintiff. These positive clinical and test results are indicative of serious injury (see Brown v. Achy, 9 AD3d 30, 33 [2004]). Defendant's submission also included a report of a neurological evaluation of plaintiff conducted within one week of the accident, at which time plaintiff had [*2]numbness, tingling and weakness in his right extremities as well as a positive straight leg raising test (see DaSilva v. Storz, 290 AD2d 288 [2002]; Adetunji v. U-Haul, 250 AD2d 433 [1998]). At the time, the neurologist concluded that plaintiff's prognosis was "guarded" and recommended additional testing to rule out other injuries. This required denial of defendant's motion without regard to the adequacy of plaintiff's opposition (id.; see also Pisasale v. Buckhorn Carriers, 249 AD2d 157 [1998]).

This constitutes the decision and order of the court.
Decision Date: October 26, 2005