Appeal by plaintiff from an order of the Civil Court, Richmond County (E. Vitaliano, J.), dated November 29, 2002, which granted defendants' motions for summary judgment.

Order unanimously reversed without costs and defendants' motions for summary judgment denied.

Defendants moved for summary judgment on the ground that the plaintiff failed to satisfy the threshold requirement of suffering a serious injury pursuant to Insurance Law § 5102 (d). The affirmed medical reports submitted by defendants in support of their motions for summary judgment made out a prima facie case that the plaintiff did not suffer such an injury. This shifted the burden to the plaintiff to raise a triable issue of fact (Gaddy v Eyler, 79 NY2d 955).

The plaintiff successfully opposed the motions by presenting evidence that she suffered a serious injury. She submitted an affidavit from her treating chiropractor who presented a qualitative assessment of plaintiffs condition which had an objective basis and compared the plaintiffs limitations of motion of her lumbar and cervical spines to the normal function thereof (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350). This was sufficient to raise a triable issue of fact.

The plaintiff satisfactorily explained the six-year gap between the initial course of treatment following the accident, which lasted more than eight months, and the most recent examination. She submitted the affidavit of her chiropractor who stated that she ceased treating plaintiff because plaintiff had reached a plateau in her improvement. Plaintiff also submitted her own affidavit in which she stated that no-fault benefits no longer paid for her treatment (cf. Medina v Zalmen Reis & Assocs., 239 AD2d 394).

The plaintiff also satisfied the 90/180 category of the statute since it is uncontroverted that plaintiff missed ten months of work as a result of the accident.
Decision Date: December 03, 2003