Appeal by defendant from an order of the Civil Court, Kings County (B. Bayne, J.), dated December 2, 2002, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

The defendant's motion for summary judgment on the issue of liability was properly denied. The defendant motorist struck plaintiff Stephen Fennell, an 11-year-old child, as he crossed the street between parked cars. The injured plaintiff and the defendant testified at their respective examinations before trial that neither saw the other prior to the accident. Under the circumstances, a triable issue of fact was presented on the issue of liability.

With regard to the issue of whether the injured plaintiff sustained a serious injury pursuant to Insurance Law § 5102 (d), the affirmed medical report submitted by defendant in support of his motion for summary judgment made out a prima facie case that the injured plaintiff did not sustain a serious injury. Defendant's doctor stated that plaintiffs shoulder, neck and back were normal. This shifted the burden to plaintiffs to raise a triable issue of fact (Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiffs successfully opposed the motion by presenting evidence that the injured plaintiff sustained a serious injury. They submitted an affirmation from a doctor who stated that as a result of the accident, the injured plaintiff suffered a jagged laceration of the left forearm as well as impingement and a partial rotator cuff tear of his left shoulder. He stated that the laceration has healed, but the plaintiff will be left with permanent scarring, permanent weakness, permanent irritation of the ulnar nerve and permanent decreased sensation in his left small finger [*2](Balanta v Stanlaine Taxi Corp., 307 AD2d 1017 [2003]).
Decision Date: December 22, 2003