[*2]Appeal by defendants from an order of the Civil Court, Kings County (J. Battaglia, J.), dated October 11, 2002, which denied their motion for summary judgment.

Order affirmed without costs.

The plaintiff was injured in an automobile accident on August 12, 1996. Defendants moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious Injury under Insurance Law § 5102 (d).

The affirmed medical reports submitted by one of defendants' doctors made out a prima facie case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). It stated that the doctor performed range of motion tests, which he specified, on plaintiff's cervical and lumbar spines which were normal. The burden, therefore, shifted to the plaintiff to raise a triable issue of fact that he sustained a serious injury (Gaddy v Eyler, 79 NY2d 955).

The plaintiff successfully opposed the motion by presenting evidence that he sustained a serious injury. The plaintiff submitted an affirmation from his physician which described plaintiff's numeric limitation of lateral flexion in his cervical spine bilaterally (20%) and forward flexion in his lumbar spine (25%) which occurred as result of the accident (Toure v Avis Rent A Sys., 98 NY2d 345, 350).

Aronin, J.P. and Golia, J., concur.

Patterson, J., taking no part.
[*3]Decision Date: October 01, 2003