HOISINGTON v. SANTOS (2008)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered August 7, 2007, which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

 The report of defendant's expert orthopedist addresses plaintiff's condition at the time of examination, more than three years after the accident, and therefore is insufficient to establish that plaintiff was not incapacitated from performing substantially all of her customary and daily activities for 90 of the 180 days immediately following the accident.   However, the report establishes, prima facie, based on the results of numerous objective tests performed by the expert, that plaintiff's injuries have resolved (see Thompson v. Ramnarine, 40 A.D.3d 360, 835 N.Y.S.2d 566 [2007] ).   In opposition, the report of plaintiff's medical expert, who found, based on his own quantitative assessments, that plaintiff has limited ranges of motion in her cervical and lumbosacral spine, raises an issue of fact whether such limitations are permanent or significant (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ).