Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Queens County (B. Siegal, J.), dated September 27, 2002, as granted defendant Xiong's motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs and defendant Xiong's motion for summary judgment denied.

This case involves a three car accident in which defendant Xiong's vehicle struck the vehicle owned by defendant Elrac, Inc., and driven by defendant Roberts in the rear causing it to strike plaintiffs' vehicle in the rear.

The medical evidence submitted by defendant Xiong in support of his motion for summary judgment made out a prima facie case that the injured plaintiff, Mingyuh Chia, did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) in that his injuries were resolved. The burden therefore shifted to the plaintiffs to raise a triable issue of fact that Mingyuh Chia sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]).

In the case at bar, the injured plaintiff successfully opposed the motion by presenting evidence that he sustained a serious injury. The plaintiff submitted an affirmation from his physician which described the injured plaintiffs numeric limitation of cervical lateral flexion and [*2]rotation, and lumbar flexion and extension which occurred as a result of this accident (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

We note that in light of our disposition herein, plaintiffs' cross motion for summary judgment on the issue of liability is not moot. However, since plaintiffs' brief on appeal does not address liability, we do not reach said issue.
Decision Date: December 19, 2003