Appeal by defendant from an order of the Civil Court, Kings County (A. Schack, J.), dated June 18, 2003, which denied his motion for summary judgment dismissing the complaint.

Order unanimously affirmed without costs.

Defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). In support of his motion, one of defendant's experts noted that MRIs of the plaintiff's back revealed disc herniations at C5-C6 and L4-L5 and a disc bulge at C3-C4. After examining the plaintiff, the same expert found that plaintiff had resolved soft tissue injuries of the cervical and lumbar spines. Accordingly, the
burden shifted to the plaintiff to raise a triable issue of fact that she sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]).

In opposition, the plaintiff submitted an affirmation from a physician who performed a recent examination of the plaintiff. The physician quantified the results with percentages of the loss of range of motion of the cervical and lumbar spines.

In view of the foregoing, the plaintiff established that there is an issue of fact as to whether she sustained a significant limitation of use of a body function or system within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Cenatus v Rosen, 3 AD3d 546 [2004]).
Decision Date: May 04, 2004