Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 15, 2005. The order denied the motion by defendants Albert Springer and Fernando Davalos for summary judgment.

Order affirmed without costs.

Defendants Albert Springer and Fernando Davalos moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). One of the movants' examining physicians recorded in his affirmation a limitation in plaintiff's range of motion despite his ultimate conclusion that plaintiff did not sustain a serious injury. Accordingly, the motion papers failed to make a prima facie showing that plaintiff did not sustain a serious injury (see Tchjevskaia v Chase, 15 AD3d 389 [2005]; Swinburne v Marzec, 12 Misc 3d 140[A], 2006 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists]). In any event, even if the moving defendants had shifted the burden, plaintiff's opposition papers demonstrated that she sustained a serious injury. Plaintiff's physician presented qualitative assessments of plaintiff's condition which had an objective basis and compared plaintiff's limitations of motion of her lumbosacral spine to normal function (Iacovazzo v Ahmad, 27 AD3d 421 [2006]).

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: March 5, 2007