Appeal by defendant from so much of an order of the Civil Court, Queens County (A. Agate, J.), dated April 15, 2002, as denied her motion for summary judgment.

Order unanimously reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

The affirmed medical reports submitted by defendant made out a prima facie case that the plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). They stated that plaintiff suffered cervical and lumbosacral sprains as a result of the accident. One doctor referred to reports finding disc bulges at L3-L4, L5-Si and C2-C3, and a disc herniation at L4-L5. He stated that these reports concluded that the disc bulges and herniation were degenerative in nature. Even if the disc bulges and herniation were caused by the accident, disc bulges or herniations, by themselves, do not constitute a serious injury (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353). The burden therefore shifted to plaintiff to raise a triable issue of fact that she sustained a serious injury (Gaddy v Eyler, 79 NY2d 955).

Plaintiff's opposition papers failed to raise a triable issue of fact. Plaintiff's doctor did not designate a numeric percentage of plaintiff's loss of range of motion or a qualitative assessment of her physical condition compared 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, supra).
Decision Date: November 21, 2003