DeVEGLIO v. OLIVERI

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

In support of their motion for summary judgment, the defendants submitted the initial magnetic resonance imaging report of the injured plaintiff's lumbar spine showing herniated discs at L3-4 and L4-5. In contrast, upon reviewing the same film, the defendants' medical experts concluded that the injured plaintiff's lumbar spine showed signs of degenerative disc disease. By submitting contradictory medical proof on the nature of the injury sustained by the injured plaintiff, the defendants failed to establish that they were entitled to summary judgment as a matter of law.

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, 226 A.D.2d 437, 438).