Opinion
2002-823 K C.
Decided October 15, 2003.
Appeal by plaintiff from an order of the Civil Court, Kings County (K. Yellen, J.), dated March 28, 2002, which granted defendants' motion for summary judgment.
Order unanimously reversed without costs and defendants' motion for summary judgment denied.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
The affirmed medical reports submitted by defendants in support of their motion for summary judgment made out a prima facie case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The defendants' doctor stated that plaintiff's disc bulges were degenerative and that his injuries were resolved. This shifted the burden to the plaintiff to raise a triable issue of fact that he sustained a serious injury ( Gaddy v. Eyler, 79 NY2d 955).
The plaintiff was required to provide objective evidence of "the extent or degree of physical limitation" by means of "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion . . . [or] [a]n expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member function or system" ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350).
In the case at bar, the plaintiff successfully opposed the motion by presenting evidence that he suffered a serious injury. The plaintiff submitted an affirmation from his physician wherein he described the numeric limitations of plaintiff's cervical and lumbar spines. He further asserted that the motor vehicle accident caused said injury. This was sufficient to raise a triable issue of fact as to whether the injured plaintiff suffered a serious injury ( Toure v. Avis Rent A Car Sys., supra).