Munoz v. Robinson

2019 NY Slip Op 1520

Opinion

Munoz v Robinson (2019 NY Slip Op 01520)

Munoz v Robinson

2019 NY Slip Op 01520

Decided on March 5, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 5, 2019
Acosta, P.J., Richter, Manzanet-Daniels, Tom, Moulton, JJ.

8578 152701/15

[*1]Sabrina Munoz, Plaintiff-Appellant,

v

Ricky R. Robinson, et al., Defendants-Respondents.

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellant.

DeSena & Sweeney, LLP, Bohemia (Shawn P. O'Shaughnessy of counsel), for Rickey R. Robinson and Denise L. Robinson, respondents.

Bamundo, Zwal & Schermerhorn, LLP, New York (Edward W. Chen of counsel), for William Paulino, respondent.

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about January 2, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing the claim of serious injury to the left knee within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, and the motions denied, without costs.

Defendants established prima facie that plaintiff did not suffer a serious injury to her left knee as a result of the subject accident through the affirmed reports of their experts, who examined plaintiff, documented normal range of motion, and attributed plaintiff's complaints to a preexisting degenerative condition (see e.g. Castro v DADS Natl. Enters., Inc., 165 AD3d 601 [1st Dept 2018]).

In opposition, plaintiff raised an issue of fact through the affirmed narrative report of her treating orthopedic surgeon, who documented limitations in plaintiff's range of motion, acknowledged plaintiff's preexisting degenerative condition, and concluded, based on a full review of the medical history, physical examination and observations during surgery, that the accident had severely aggravated plaintiff's condition, necessitating surgery for an acute meniscal tear (see Lazzari v Qualcon Constr., LLC, 162 AD3d 440, 441 [1st Dept 2018]; Giap v Hathi Son Pham, 159 AD3d 484, 486 [1st Dept 2018]; see also Malloy v Matute, 79 AD3d 584 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 5, 2019

CLERK