Malloy v Matute

Malloy v Matute 2010 NY Slip Op 09383 [79 AD3d 584] December 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Norman Andrew Malloy, Appellant,
v
Felipe A. Matute, Respondent.

—[*1] Raskin & Kremins L.L.P., New York (Andrew J. Metzar of counsel), for appellant.

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

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about October 6, 2009, which granted 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 modified, on the law, to deny the motion as to plaintiff's claim of serious injury to his right knee, and otherwise affirmed, without costs.

Plaintiff's submissions were sufficient to raise a triable issue of fact as to whether he suffered a "serious injury" to his right knee. While defendant's experts found that plaintiff's injuries were degenerative, plaintiff's doctors were unanimous in concluding that the subject accident was the sole competent producing cause of plaintiff's knee injuries, based upon (1) their individual examinations; (2) MRI results; and (3) the necessity of surgery to repair a tear in the medial meniscus, a partial tear of the anterior cruciate ligament, chondromalacia, synovitis, and fibrosis (see Pommells v Perez, 4 NY3d 566 [2005]; Colon v Bernabe, 65 AD3d 969, 970 [2009]). It also bears noting that plaintiff was 37 years old when he was hit on his right side by defendant's taxi, he had no prior knee problems or injuries to his right leg, and his right knee surgery took place within four months of the accident. Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.