Defendant appeals from an order of the Civil Court, Bronx County, entered October 23, 2003 (Robert A. Sackett, J.) which denied her motion for summary judgment dismissing the complaint.

PER CURIAM:

Order entered October 23, 2003 (Robert A. Sackett,
J.), affirmed, with $10 costs.

Plaintiff presented objective evidence that he sustained a "serious injury" within the meaning of Insurance Law § 5102[d] (see Toure v Avis Rent A Car, 98 NY2d 345 [2002]) through the affidavit of his treating physician, who diagnosed various injuries to plaintiff's spine and hip that the doctor attributed to the accident and opined were permanent because of plaintiff's failure to respond to treatment. The doctor identified the objective tests he performed and medical reports on which he relied to reach his conclusions, and quantified "medically significant" restrictions of movement in plaintiff's spine. Plaintiff's affidavit recounted his ongoing restriction of activity and inability to return to normal duties at work. That the treating doctor's findings conflict with other medical opinion evidence raises an issue for the trier of fact [*2]that cannot be resolved on a motion for summary judgment (see O'Sullivan v Atrium Bus Co., 246 AD2d 418 [1998]).

This constitutes the decision and order of this Court.
Decision Date: December 20, 2004