Appeal by defendant from an order of the Civil Court, Queens County

(A. Agate, J.), entered July 30, 2003, which denied his motion for summary judgment against plaintiff Mikhail Borukhov.

Order unanimously affirmed without costs.

The affirmed medical reports submitted by defendant's medical experts in support of the motion made out a prima facie case that the injured plaintiff, Mikhail Borukhov, did not sustain a serious injury pursuant to Insurance Law § 5102 (d). One of defendant's doctors stated that plaintiff had resolved cervical and lumbosacral sprains and strains. Another of defendant's doctors stated that plaintiff had no disability. This shifted the burden to the injured plaintiff to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

The injured plaintiff successfully opposed the motion by presenting evidence that he suffered a serious injury. He submitted an affirmation from a doctor who presented
a qualitative assessment of plaintiff's condition which had an objective basis and
compared plaintiff's limitations of motion of his cervical and lumbar spines to normal function (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]).

While there was a gap in treatment of almost four years, there was evidence regarding the nature of the injured plaintiff's treatment for approximately four months after the accident. He testified at his examination before trial that he discontinued treatment because the no-fault [*2]insurance payments stopped and he had no money to continue treatment. Under the circumstances, the plaintiff has satisfactorily explained the reason that he discontinued treatment.
Decision Date: December 10, 2004