Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered June 11, 2007. The order denied defendant's motion for summary judgment.

Order affirmed without costs.

In this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident, defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The court below denied defendant's motion, finding that plaintiff had rebutted defendant's prima facie showing and had raised a triable issue of fact. The instant appeal by defendant ensued.

The affirmed radiological report of defendant's expert, who reviewed the MRI of plaintiff's cervical spine, made a finding of "straightening of the normal cervical
lordosis," stating that the straightening could indicate muscle spasms (see e.g. Fox v Bello, 254 AD2d 454 [1998]) or that it could have been caused by the way plaintiff was positioned during the examination. The report failed to establish prima facie that plaintiff did not sustain a serious injury and, indeed, actually identified a triable issue of fact (O'Shea v Johnson, 49 AD3d 614 [2008]). Accordingly, defendant failed to meet his prima facie burden and, thus, failed to shift the burden to plaintiff (see Tchjevskaia v Chase, 15 AD3d 389 [2005]; Johnson v Springer, 14 Misc 3d 145[A], 2007 NY Slip Op 50399[U] [App Term, 2d & 11th Jud Dists 2007]). Under these circumstances, it is unnecessary for this court to consider whether plaintiff's papers in opposition to defendant's motion were sufficient to raise a triable issue of fact (see Coleman v [*2]Shangri-La Taxi, Inc., 49 AD3d 587 [2008]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Therefore, the order denying defendant's motion for summary judgment is affirmed, albeit on other grounds.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008