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ANTHONY DETTORI, appellant, v. FELICIA MOLZON, ET AL., respondents.

DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motions are denied, and the complaint is reinstated.

The Supreme Court should have denied the defendants' motions for summary judgment. The defendants submitted contradictory proof as to whether the plaintiff's lumbar spine condition was caused by the subject accident or a previous accident (see Coscia v. 938 Trading Corp., 283 A.D.2d 538; Julemis v. Gates, 281 A.D.2d 396; DeVeglio v. Oliveri, 277 A.D.2d 345), and failed to establish that the injuries allegedly sustained by the plaintiff did not constitute a serious injury within the meaning of Insurance Law § 5102(d). Accordingly, the defendants failed to establish a prima facie case for judgment as a matter of law (see Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437). Under these circumstances, it is not necessary to consider whether the plaintiff's opposition to the motions was sufficient to raise a triable issue of fact (see Chaplin v. Taylor, 273 A.D.2d 188).

SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.

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DETTORI v. MOLZON
(Jun 9, 2003)