COSCIA v. 938 TRADING CORP

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment. In support of their motion, the defendants submitted evidence that the plaintiff Phyllis Coscia was suffering from restrictions of motion in her lumbar spine. Furthermore, the defendants submitted contradictory proof as to whether the injured plaintiff's lumbar spine condition was caused by the subject accident or a degenerative disease (see, Julemis v. Gates, A.D.2d [2d Dept., Mar. 5, 2001]; DeVeglio v. Oliveri, 277 A.D.2d 345). Accordingly, the defendants failed to establish a prima facie case that the injuries allegedly sustained by Phyllis Coscia were not serious within the meaning of Insurance Law § 5102(d) (see, Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437; Mendola v. Demetres, 212 A.D.2d 515). Under these circumstances, it is not necessary to consider whether the plaintiffs' papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see, Chaplin v. Taylor, 273 A.D.2d 188; Mariaca-Olmos v. Mizrhy, supra).

SANTUCCI, J.P., S. MILLER, LUCIANO, FEUERSTEIN and ADAMS, JJ., concur.