Opinion
No. 2882.
February 26, 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.
Baker, McEvoy, Morrissey Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant.
Krieger, Wilansky Hupart, Bronx (Brett R. Hupart of counsel), for respondent.
Before: Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ.
The report of defendant's expert orthopedist addresses Plaintiffs 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 Plaintiffs injuries have resolved ( see Thompson v Ramnarine, 40 AD3d 360). In opposition, the report of Plaintiffs 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 NY2d 345, 350).