WAZIRI v. SMALL

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

The Supreme Court improperly granted the defendant's motion. The plaintiff's expert found that a Magnetic Resonance Imaging (hereinafter MRI) of the plaintiff's cervical spine performed on August 26, 1996, approximately five weeks after the subject accident, revealed a herniated disc at C6-C7. This raised a triable issue of fact as to whether the plaintiff had sustained a serious injury within the meaning of the Insurance Law (see, Chaplin v. Taylor, 273 A.D.2d 188 [2d Dept., June 5, 2000]; Flanagan v. Hoeg, 212 A.D.2d 756, 757).