Opinion
2003-156 K C.
Decided December 17, 2003.
Appeal by defendant from so much of an order of the Civil Court, Kings County (A. Schack, J.), dated November 26, 2002, as denied his motion for summary judgment as to plaintiff Ana Pineda.
Order insofar as appealed from unanimously affirmed without costs.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
The plaintiff was injured in an automobile accident on September 2, 1998. The affirmed medical reports submitted by defendant in support of his motion for summary judgment made out a prima facie case that plaintiff Ana Pineda did not sustain a serious injury pursuant to Insurance Law § 5102 (d). A diagnosis of a disc bulge does not, by itself, constitute a serious injury within the meaning of the Insurance Law ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 353). This shifted the burden to plaintiff to raise a triable issue of fact that she suffered a serious injury ( Gaddy v. Eyler, 79 NY2d 955).
Plaintiff Ana Pineda successfully opposed the motion by presenting evidence that she suffered a serious injury. The plaintiffs doctor, who examined her 3½ years after the accident, submitted an affirmation in which he stated that with respect to Ana Pineda's cervical spine, forward flexion was 50% limited, extension was 60% limited, left rotation was 37.5%limited and right rotation was 31.25% limited. With regard to Ana Pineda's lumbar spine, her forward flexion was 44.4% limited, extension was 66.6% limited, left rotation was 33.3% limited and right rotation was 16.6% limited. He further stated that the injuries were causally related to the accident. The numeric percentage of plaintiffs limitation of motion described by her physician substantiated her claim that she suffered a serious injury ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350, supra).