Upon oral argument held on November 16, 2022, and review of the foregoing papers the defendants' motion for summary judgment is determined as follows.

Defendants move for summary judgment to dismiss plaintiff's alleged injuries to his spine on the basis that the objective evidence shows that there was no spinal injuries sustained as a result of the subject incident.

Plaintiff was involved in a trip and fall incident on April 19, 2018, which allegedly [*2]resulted in injuries to the lumbar spine including herniation at L5-S1 necessitating a fusion L5-S1 surgery on June 18, 2020.

On September 19, 2018, plaintiff underwent an MRI of the lumbar spine, which was interpreted by a radiologist, Dr. DeLara, as "unremarkable non-contrast MRI examination" inter alia, showing no herniations.

Moreover, plaintiff's medical examination performed on behalf of the defendants, by Dr. Spivak, a "spinal specialist", did not reveal injuries to the spine as a result of the subject incident. Dr. Spivak contended that plaintiff's treatment records are devoid of a complaint to the spine from the date of the alleged incident through September 19, 2018, when he underwent the lumbar MRI. Dr. Spivak further points out that plaintiff was involved in a subsequent "December 2018" incident as per Dr. Avansov's April 19, 2019 records.

Plaintiff also underwent a medical examination performed by defendants' orthopedist expert, Dr. Bezos who also opined that there was no nexus between the alleged incident and the alleged lumbar injuries including the June 2020 spinal fusion. Dr. Bezos further opined that there was no evidence plaintiff sustained a cervical spine injury as a result of the subject incident in light of the lack of subjective complaints and any clinical evidence of limitations in his medical records through September 19, 2018.

Defendants' radiologist expert, Dr. Paley reviewed plaintiff's MRIs of the lumbar and cervical spines and agreed with Dr. DeLara's interpretation of lack of any objective injury to the lumbosacral spine.

In opposition to the motion, plaintiff contends that following the subject incident, she initially sought treatment at DHD medical with Dr. Matthew who recommended plaintiff undergo physical therapy and MRIs.

On September 7, 2018, plaintiff sought treatment at Advanced Orthopedic and Spine Care, complaining of pain and limitation of movement of the neck and the lower back. His physical examination on that date revealed significant limitation and deficits of the lumbar and cervical spine. Plaintiff was recommended to undergo MRIs of the cervical and lumbar spine. On October 3, 2018, plaintiff returned to the Advance Orthopedic and was seen by Dr. Avensov who had reviewed the MRI films. As to the lumbar MRI, Dr. Avensov disagreed with Dr. DeLara's interpretation and found that the plaintiff had sustained L5-S1 herniated disc consistent with his positive clinical findings and plaintiff's complaints of radiating back pain, accompanied by weakness and numbness which was indicative of radiculopathy. Dr. Avensov opined the lumbar injuries were caused by the subject incident. At Advance Orthopedic, Dr. Leven reviewed the MRI film of the cervical spine, finding herniated disc at C5-C6 with radiculopathy, and opined plaintiff's cervical injuries were related to the subject incident.

Plaintiff underwent a course of physical therapy. On January 14, 2020, plaintiff returned to Dr. Avansov for an evaluation with complaints of pain in the back and the neck. Dr. Avensov performed plaintiff's physical examination of the lumbar and the cervical spine, showing significant limitation of range of motion at numerous levels. Dr. Avansov opined plaintiff sustained multiple traumatic, serious and permanent injuries to his cervical and lumbar spine that are causally related to the subject incident including traumatic disc herniation at L5-S1 with nerve root impingement and bilateral radiculopathy requiring a lumbar fusion at L5-S1 that performed on June 18, 2020.

In deciding a motion for summary judgment, the court must view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable [*3]inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion. See Yelder v Walters, 64 AD3d 762 (2d Dept 2009).

Contrary to the opinions of defendant's experts and Dr. DeLara, plaintiff's treating physicians, Dr. Avensov and Dr. Leven based on their review of the MRI films, and evaluation of the plaintiff, opined that plaintiff sustained as a result of the subject incident the alleged spinal injuries which necessitated inter alia lumbar fusion at L5-S1. In addition, Dr. Avensov who performed the L5-S1 fusion, stated he had the distinct ability to personally observe plaintiff's lumbar spine including the herniated disc at L5-S1 while he was performing the laminectomy. Dr. DeLara and defendants' experts' "unremarkable" lumbar MRI finding, create material factual issues since they conflict with plaintiff's surgeon's observation of the discs and interpretation of the MRI.

The evaluation of competing evidence falls within the province of the trier of fact at trial and it is not appropriate for the court to dismiss the complaint on a motion for summary judgment. See Gaviria v Alvarado, 65 AD3d 567 (2d Dept 2009).

Here, each party submits medical expert opinions as to the nature, extent and causation of plaintiff's alleged injuries that conflict with those of the other, thus raising factual issues for the jury to decide. Conflicting expert opinions raise credibility issues that must be resolved by the fact finder. Loiza v Lam, 107 AD3d 951 (2d Dept 2013).

Based on the foregoing material factual issues, defendants' motion for summary judgment is denied.

This constitutes the Order of the Court.