Opinion
2003-737 K C.
Decided December 19, 2003.
Appeal by defendants from an order of the Civil Court, Kings County (D. Waltrous, J.), dated April 24, 2003, which denied their motion for summary judgment.
Order unanimously reversed without costs, defendants' motion for summary judgment granted and complaint dismissed.
PRESENT: PESCE, P.J., ARON1N and RIOS, JJ.
The affirmed medical reports submitted by the 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). One doctor stated that plaintiff had no objective abnormalities. Another doctor diagnosed plaintiffs injuries as cervical and lumbar sprains and strains. A third doctor stated that the herniated disc at C5-C6 was degenerative in nature and not caused by the accident. 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 plaintiffs opposition was insufficient to raise a triable issue of fact. While plaintiffs doctor indicated that plaintiff had restricted motion of his neck and back, he did not designate a numeric percentage of plaintiff's loss of range of motion or provide a qualitative assessment of his physical condition compared to the normal function, purpose and use of the affected area ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350).