Opinion
2003-1035 K C.
Decided April 27, 2004.
Appeal by defendants from an order of the Civil Court, Kings County (A. Schack, J.), dated June 20, 2003, which denied their motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). In support of their motion, one of defendants' experts noted that MRIs of plaintiff's back revealed disc bulges at C2-C3, C3-C4, L2-L3 and L5-S1. After examining the plaintiff, the same expert found that plaintiff had resolved cervical and lumbar injuries. Accordingly, the burden shifted to the plaintiff to raise a triable issue of fact that he sustained a serious injury ( see Gaddy v. Eyler, 79 NY2d 955).
In opposition, the plaintiff submitted an affidavit from plaintiff's treating chiropractor who examined him soon after the accident and continued to treat him for almost three months thereafter. He performed a recent examination of the plaintiff wherein he quantified the results with percentages of the loss of range of motion of the cervical and lumbar spines.
In view of the foregoing, the plaintiff established that there is an issue of fact as to whether he sustained a significant limitation of use of a body function or system within the meaning of Insurance Law § 5102 (d) ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 353; Cenatus v. Rosen, 3 AD3d 546).