McDuffie v Rodriguez

McDuffie v Rodriguez 2010 NY Slip Op 03366 [72 AD3d 568] April 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Rosa L. McDuffie, Appellant,
v
Capellan B. Rodriguez et al., Respondents.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about June 19, 2009, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, and the complaint reinstated.

Defendants met their prima facie burden of establishing that plaintiff did not sustain a serious injury by submitting the affirmed reports of experts who, after examining plaintiff and reviewing her medical records and MRI studies, found a lack of causation between her complaint of right knee pain and the subsequent arthroscopic surgical repair and the accident, and instead attributed plaintiff's condition to preexisting degenerative osteoarthritis (see Jean v Kabaya, 63 AD3d 509 [2009]). In opposition, plaintiff raised a triable issue of fact, as her treating physician noted acute injuries related to the automobile accident as well as degenerative changes. Defendants' remaining arguments need not be addressed. Concur—Gonzalez, P.J., Catterson, Moskowitz, Renwick and Richter, JJ.