Johnson v. Salaj
| Decision Date | 09 July 2015 |
| Docket Number | 15689, 304975/11 |
| Citation | 13 N.Y.S.3d 418,2015 N.Y. Slip Op. 06036,130 A.D.3d 502 |
| Parties | Michelle D. JOHNSON, Plaintiff–Appellant, Troy Screen, Plaintiff, v. Albert SALAJ, et al., Defendants, Mohammed O. Rahman, et al., Defendants–Respondents. |
| Court | New York Supreme Court — Appellate Division |
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola (Melissa C. Ingrassia of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondents.
MAZZARELLI, J.P., SWEENY, SAXE, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered April 4, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing the complaint based on plaintiff's inability to demonstrate that she suffered a serious injury to her left knee or a 90/180–day injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to deny the motions as to plaintiff's claims of “significant” and “permanent consequential” limitations in use of her left knee, and otherwise affirmed, without costs.
Plaintiff alleges that she suffered serious injuries requiring arthroscopic surgery
on her left knee as the result of a rear-end collision involving three cars. In order to meet their prima facie burden, defendants were required to demonstrate that plaintiff has not suffered a “serious injury,” which they could do through medical affirmations concluding that no objective medical findings support her claim that she suffered an injury resulting in permanent or significant limitations in use of her knee, and, if objective evidence exists, that the injury was caused by a preexisting condition and not the accident (see Neil v. Tidani, 126 A.D.3d 581, 3 N.Y.S.3d 587 [1st Dept.2015] ; Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 920 N.Y.S.2d 24 [1st Dept.2011] ).
In support of their motions for summary judgment, defendants submitted conflicting expert reports, and thus failed to meet their prima facie burden. While one orthopedic expert found full normal range of motion in the left knee, the other found limitations in range of motion which he did not otherwise explain (compare Swift v. New York Tr. Auth., 115 A.D.3d 507, 981 N.Y.S.2d 706 [1st Dept.2014] ). Moreover, both of the defendants' expert radiologists found that the MRI film showed objective evidence of injury, i.e., a partial thickness tear of the anterior cruciate ligament
(ACL). While one of the experts opined that the injury was degenerative in origin, the other opined that the injury could have been caused either by the accident or by prior injury or surgery, if there were any evidence of prior injury or surgery.
Since defendants presented no evidence of any prior knee injury
or surgery, the defense expert's opinion did not demonstrate as a matter of law that plaintiff's knee injury was not causally related to the accident (see Fuentes v. Sanchez, 91 A.D.3d 418, 936 N.Y.S.2d 151 [1st Dept.2012] ). Thus, the burden did not shift to plaintiff to...
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