Appeal by defendants, as limited by their brief, from so much of an order of the Civil Court, Queens County (C. Markey, J.), dated July 3, 2002, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover, inter alia, for personal injuries sustained in an automobile collision, defendants moved for summary judgment on the ground that the injured plaintiff did not suffer a serious injury under Insurance Law § 5102 (d) and on the ground that the defendant driver was not negligent.

The court properly denied defendants' motion for summary judgment on the issue of liability. Even though Yong Wan Oh, the defendant motorist, had the right of way, he stated at his examination before trial that when he was two or three car lengths from the intersection, he observed the vehicle driven by the injured plaintiff, Gervasio Rodriguez, moving into the intersection past the stop sign. He stated that his foot was above the accelerator, but not touching it, and he never applied his brakes. Defendant's left front bumper subsequently struck the plaintiff's passenger side back door.

Under the doctrine of comparative negligence, a driver who lawfully enters an intersection may still be found partially at fault for an accident if he fails to use reasonable care to [*2]avoid another vehicle in the intersection. Under the circumstances presented, a question of fact exists as to whether the defendant driver used reasonable care to avoid the collision (Romano v 202 Corp., 305 AD2d 576 [2003]).

A question of fact was likewise presented on the issue of whether the injured plaintiff suffered a serious injury. The affirmed medical reports submitted by defendants in support of their motion for summary judgment made out a prima facie case that the injured plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Defendants' doctors stated that the injured plaintiff suffered cervical and lumbar sprains/strains. This shifted the burden to the plaintiffs to raise a triable issue of fact (Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiffs successfully opposed the motion by submitting an affirmation from a doctor who presented a qualitative assessment of the injured plaintiff's condition which had an objective basis and compared the plaintiff's limitations of motion of his cervical and lumbar spines to normal function (Toure v Avis Rent a Car Sys., 98 NY2d 345, 350 [2002]). In addition, the injured plaintiff suffered herniated discs at C5-C6, C6-C7, L4-L5 and L5-S2. His doctor stated that all the injuries were causally related to the accident.
Decision Date: March 26, 2004