Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered on June 13, 2003, which denied his motion for summary judgment.

Order unanimously affirmed without costs.

Defendant moved for an order granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The medical evidence submitted by defendant in support of his motion made out a prima facie case that plaintiff did not sustain a serious injury. One of defendant's doctors stated that there was no neurologic disability. Another of defendant's doctors stated that the disc herniations and disc bulges were degenerative in nature. The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

Plaintiff's opposition papers raised a triable issue of fact. Plaintiff submitted an affidavit from her treating physician which described her numeric limitation of cervical and lumbar ranges of motion and the tests performed (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). In addition, he read the MRI films which revealed that plaintiff suffered herniated discs at C3-C4, C4-C5 and C6-C7, along with bulging discs at C5-C6, L3-L4 and L4-L5 as a result of the accident.
Decision Date: June 15, 2004