The opinion
Goldstein, J.,
dissents and votes to affirm, with the following *571 memorandum, with which Feuerstein, J., concurs. On March 12, 1996, the plaintiff sustained personal injuries in an automobile accident. This action to recover damages for personal injuries was commenced on or about November 19, 1997. By notice of motion dated June 21, 1999, the appellant moved for summary judgment, asserting that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In support of the motion, the appellant submitted affirmed reports of a neurologist and an orthopedic surgeon, both of whom examined the plaintiff on September 15, 1998, on behalf of the appellant. The neurologist noted in his report that a Magnetic Resonance Imaging (hereinafter MRI) of the plaintiff’s back showed disc herniation at C5-6 and C6-7, as well as disc bulging at L2-3, L3-4, C3-4, and C4-5. He further noted that the plaintiffs “past history is negative”. The neurologist also stated that, subsequent to the accident, the plaintiff stayed out of work as a home attendant until June 1996 and continued physical therapy until December 1996. At the time of the examination in September, 1998, the plaintiff still used a back brace “at times”, took painkillers, and regularly used a heating pad.
The orthopedic surgeon noted that the plaintiff “lost approximately three months from work” as a result of the accident. His report reiterated the MRI findings, and noted that “[i]f the history is accurate, the claimant’s complaints are causally related to the accident as described”.
The plaintiff, in opposition, submitted an affidavit from a chiropractor reiterating the findings of the appellant’s experts and indicating that her injuries were permanent. The plaintiff also submitted a physician’s affirmation which incorporated the terms of the physician’s report stating that subsequent to the accident, the patient was “totally disabled for [sic] her usual occupation as a home health aide”.
The Supreme Court denied the appellant’s motion for summary judgment without comment. It is apparent from this record that the appellant failed to establish entitlement to judgment as a matter of law (see, Chaplin v Taylor, 273 AD2d 188 ). The majority acknowledges that a herniated disc may constitute a serious injury (see, Chaplin v Taylor, supra; Flanagan v Hoeg, 212 AD2d 756 ). The herniated discs revealed by the MRI were fully described in the affidavits of the appellant’s own experts. Additionally, the appellant’s orthopedic surgeon stated that if the history given by the plaintiff were accurate, the herniated discs were causally related to the accident.
It is well settled that material relied upon by a defendant *572 moving for summary judgment is properly before the court and may be considered in determining an application for summary judgment (see, Jackson v New York City Tr. Auth., 273 AD2d 200 ; Perry v Pagano, 267 AD2d 290 ; Raso v Statewide Auto Auction, 262 AD2d 387 ; Pietrocola v Battibulli, 238 AD2d 864 ).
The majority, in reversing the determination of the Supreme Court, selectively relies upon self-serving statements in the reports of the appellant’s own experts, and purported insufficiencies in the plaintiff’s opposition papers. However, since the appellant’s evidence, considered as a whole, failed to establish her entitlement to judgment as a matter of law, the purported insufficiencies in the plaintiff’s opposition papers need not be considered (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437 ).
Accordingly, there is no basis to reverse the determination of the Supreme Court.