Opinion
2004-817 K C.
Decided March 2, 2005.
Appeal by defendant, as limited by his brief, from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered on December 2, 2003, granting plaintiff's motion to vacate an order which had granted defendant's prior motion for summary judgment on default, as, upon vacatur, denied defendant's underlying motion for summary judgment.
Order insofar as appealed from affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
The affirmed medical reports submitted by defendant's medical experts in support of defendant's underlying motion for summary judgment made out a prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d).
This shifted the burden to plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
The plaintiff's motion papers were sufficient to raise a triable issue of fact. Plaintiff's chiropractor stated that at his most recent examination of the plaintiff on March 28, 2003, he found certain restrictions in the plaintiff's range of motion. Specifically, the chiropractor reported, inter alia, that at that time, he objectively tested and measured significant limitations of motion in the plaintiff's lumbosacral spine. These decreases in the plaintiff's range of motion as found by the plaintiff's chiropractor in March 2003 were sufficient to raise a triable issue of fact as to whether the plaintiff suffered a serious injury ( Nelms v. Khokar, 12 AD3d 426).
Pesce, P.J. and Golia, J., concur.
Patterson, J., taking no part.