[*2]Appeal by plaintiffs from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), dated August 8, 2002, which granted defendant's motion for summary judgment.

Order unanimously reversed without costs and defendant's motion for summary judgment denied.

The medical evidence submitted by the defendant in support of his motion for summary judgment made out a prima face case that the injured plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). The affirmation of defendant's medical expert stated that plaintiff's injuries were resolved but noted that plaintiff had disc herniations at C4-C5 arid C6-C7. Disc herniations do not, by themselves, constitute serious injuries within the meaning of the Insurance Law (Toure v Avis Rent A Car Sys., 98 NY2d 345). The burden therefore shifted to the plaintiffs to raise a triable issue of fact that a serious injury was sustained (Gaddy v Eyler, 79 NY2d 955).

The plaintiffs' opposition papers raised a triable issue of fact. The injured plaintiff was required to provide objective evidence of the "extent or degree of physical limitation" by means of "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion ... [or] [a]n expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function, or system" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350).

In the case at bar, plaintiffs successfully opposed the motion by presenting [*3]evidence that the injured plaintiff sustained a serious injury. An affidavit from a chiropractor was submitted wherein he stated, in regard to the injured plaintiff's cervical spine, that he suffered specific range of motion limitations and compared them to the normal functions. He stated that these limitations were caused by the accident.
Decision Date: October 02, 2003