Upon the foregoing papers, the motion of defendants Timothy Sapp and Lake Three, Inc., for summary judgment dismissing the complaint on the ground that plaintiff has not sustained a "serious injury" as defined by Insurance Law §5102 is denied.

This personal injury action was instituted by plaintiff to recover damages for injuries allegedly sustained in a motor vehicle accident which occurred on September 9, 2003, at an entrance to the Staten Island Expressway. The moving defendants claim that plaintiff's failure to sustain a serious injury as defined by Insurance Law §5102(d) warrants the entry of judgment in their favor.

The Court disagrees.

In support of the motion, movants have submitted the March 15, 2006 affirmed report of Iqbal Merchant, M.D., a board certified neurologist, the March 15, 2006 affirmed report of Howard Katz, M.D., a board certified orthopedic surgeon, and the April 28, 2006 affirmed report of Howard Hirsch, M.D., a board certified radiologist. Based on his March 15, 2006 examination Dr. Merchant found that the plaintiff had resolved thoracic and lumbar strains, and was "neurologically intact" (see Defendants' Exhibit "D").

Dr. Katz also examined plaintiff on March 15, 2006, and found full range of motion of the cervical, thoracic and lumbar spine with evidence of resolved sprains and strains. While the doctor also found that both the straight leg test and the McMurray test were " positive", it is his opinion that "Ms. Russo is not disabled. Ms. Russo can work and carry on with her regular daily activities... [and] there is no treatment need from an orthopedic viewpoint." ( see Defendants' Exhibit "D").

Finally, after reviewing the January 6, 2004 MRI films of plaintiff's lumbar spine, Dr. Hirsch opined that there was no evidence of disc bulges or herniations. However, it was the doctor's impression is that pre-existing minor multi-level disc degeneration is present. To this [*2]extent, he is in "discordance with the report of Verrazano Radiology Associates, wherein they disclose right lateral disc herniation at L4-5." He further states that there is in fact clearly and unequivocally no evidence of disc herniation" (see Defendant Exhibit "D").

Based upon these reports, the moving defendants have made a prima facie showing that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law §5102(d). Accordingly, it is incumbent upon plaintiff to provide evidentiary proof in admissible form sufficient to raise a triable issue of fact on serious injury in order to avoid summary judgment. Rosenberg v Rockville Centre Soccer Club, 166 A D2d 570).

In opposition to the s motion, plaintiff has submitted the affirmed reports of Dr. Igor Stiler M.D., a board certified neurologist. The Court finds that this report raise a triable issue of fact.

Plaintiff was examined by Dr. Stiler on May 26, 2006. According to Dr. Stiler, he personally reviewed plaintiff's January 6, 2004 MRI films (the same films reviewed by Dr. Hirsch) and found evidence of a bulging disc at L4-5 with right lateral disc herniation. Regarding plaintiff's alleged injury to her lumbar spine, Dr. Stiler found "straight leg raises...positive at 50-60 degrees". This range of motion should normally be to 90 degrees. Thus, the doctor opines that there was a more than 30% reduction in range of motion of plaintiff's lumbar spine and flexion" (see Plaintiff's Exhibit "C"). As relevant, Dr. Stiles also concluded that plaintiff's injuries are causally related to the September 9, 2003 accident, and that the disc herniation and 30% limitation in range of motion are permanent in nature. It is well settled that the conflicting opinions of experts may not be resolved on a motion for summary judgment (cite) Moreover, in view of the objective evidence of serious injury under the no-fault law adduced by plaintiff Gaddy v Eyler, 167 AD2d 67 affd 79 NY2d 955 Kim v Cohen, 208 AD2d 807 [1994](see Risbrook v Coronamos Cab Corp., 244 AD2d 397 [1997]; she has sufficiently demonstrated the existence of triable issues of fact as to the seriousness of her injuries to avoid summary judgment.

Accordingly, it is hereby

ORDERED, that the motion for summary judgment is denied.ENTER,

J S C

Dated: November 17, 2006

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