| Hoisington v Santos |
| 2008 NY Slip Op 01620 [48 AD3d 333] |
| February 26, 2008 |
| Appellate Division, First Department |
| Barbara Hoisington, Respondent, v Liriano Santos,Appellant. |
—[*1] Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondent.
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 groundthat 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 ofexamination, more than three years after the accident, and therefore is insufficient to establishthat plaintiff was not incapacitated from performing substantially all of her customary and dailyactivities for 90 of the 180 days immediately following the accident. However, the reportestablishes, 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 AD3d 360 [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 issueof fact whether such limitations are permanent or significant (see Toure v Avis Rent A CarSys., 98 NY2d 345, 350 [2002]). Concur—Lippman, P.J., Tom, Nardelli, Cattersonand Moskowitz, JJ.