Opinion
2004-411 Q C.
Decided November 30, 2004.
Appeal by defendant from an order of the Civil Court, Queens County (J. Golia, J.), entered January 12, 2004, which denied defendant's motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Defendant moved for summary judgment on the issue of liability and/or on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury pursuant to Insurance Law § 5102 (d).
The court properly denied defendant's motion for summary judgment on the issue of liability. The parties' vehicles collided at an intersection; plaintiff's approach was controlled by a stop sign while there was no traffic control device restricting defendant's entry into the intersection. Plaintiff testified at her examination before trial that she entered the intersection only after she had stopped at the stop sign for three minutes, looked left, looked right, looked left again, and saw no approaching vehicles. She slowly proceeded into the intersection and saw defendant's car speeding toward her before it struck the left side of the vehicle. Defendant testified at his examination before trial that he did not see plaintiff's vehicle before it entered the intersection. While it appears that plaintiff was negligent, defendant is not entitled to judgment as a matter of law on the issue of liability as there is an issue of fact as to whether he was also at fault in causing the accident ( see Rockman v. Brosnan, 280 AD2d 591).
In regard to that branch of defendant's motion seeking summary judgment on the ground that plaintiff did not satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d), the defendant submitted affirmed medical reports which made out a prima facie case that plaintiff did not sustain a serious injury. This shifted the burden to plaintiff to raise a triable issue of fact ( see Gaddy v. Eyler, 79 NY2d 955).
The plaintiff successfully opposed the motion by presenting evidence that she suffered a serious injury. She submitted an affidavit from her treating chiropractor who presented a qualitative assessment of plaintiff's condition which had an objective basis and compared the plaintiff's limitations of motion of her cervical spine and shoulders to normal function ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). This was sufficient to raise a triable issue of fact.