Opinion
2003-135 K C.
Decided December 19, 2003.
Appeal by plaintiff from an order of the Civil Court, Kings County (D. Silber, J.), dated December 20, 2002, which granted defendants' motion for summary judgment.
Order unanimously reversed without costs and defendants' motion for summary judgment denied.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
The affirmed medical reports submitted by defendants in support of their motion for summary judgment made out a prima face case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). One of defendants' doctors stated that pursuant to Insurance Law § 5102 (d). One of defendants' doctors stated that plaintiff had no limitation of motion and there were no objective findings of injury to his cervical and lumbar spines. The other doctor who examined plaintiff on defendants' behalf found that plaintiff had resolved cervical and lumbar strains. This shifted the burden to plaintiff to raise a triable issue of fact ( Gaddy v. Eyler, 79 NY2d 955).
The plaintiff successfully opposed the motion by presenting evidence that he suffered a serious injury. The affidavit of his treating chiropractor substantiated the claim of serious injury by designating numeric percentage of plaintiffs loss of range of motion of his cervical and lumbar spines ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). This was sufficient to raise a triable issue of fact. Moreover, plaintiff satisfied the 90/1 80 day category of the statute.