Opinion
186 110829/07.
02-09-2016
Sandra HAZEL, Plaintiff–Respondent, v. Thomas A. COLON, Jr., et al., Defendants–Appellants.
Conway, Farrell, Curtin & Kelly, P.C., New York (Jonathan T. Uejio of counsel), for appellants. Jacoby & Meyers, LLP, Newburgh (Lawrence D. Lissauer of counsel), for respondent.
Conway, Farrell, Curtin & Kelly, P.C., New York (Jonathan T. Uejio of counsel), for appellants.
Jacoby & Meyers, LLP, Newburgh (Lawrence D. Lissauer of counsel), for respondent.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered May 1, 2014, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint for failure to address the issue of a 90/180–day serious injury under Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendants correctly contend that they addressed plaintiff's claim of a serious injury in the 90/180–day category. Moreover, they established prima facie that plaintiff did not sustain a serious injury of that type by submitting evidence that the injuries she allegedly sustained were not caused by the motor vehicle accident. Plaintiff's own medical records showed that she had preexisting injuries to her cervical and lumbar spines resulting from earlier work-related accidents, and defendants' orthopedic surgeon opined that plaintiff's right knee injury was degenerative and not traumatic in nature (see Chaston v. Doucoure, 125 A.D.3d 500, 3 N.Y.S.3d 33 1st Dept.2015; Galarza v. J.N. Eaglet Publ. Group, Inc., 117 A.D.3d 488, 985 N.Y.S.2d 494 1st Dept.2014; Santos v. Perez, 107 A.D.3d 572, 968 N.Y.S.2d 43 1st Dept.2013 ).
However, in opposition, plaintiff raised a triable issue of fact as to causation in connection with the injury to her right knee. During surgery, her treating orthopedic surgeon observed injuries to her right knee that were traumatically induced and causally related to the accident (see Mejia v. Ramos, 124 A.D.3d 449, 1 N.Y.S.3d 73 1st Dept.2015; James v. Perez, 95 A.D.3d 788, 945 N.Y.S.2d 283 1st Dept.2012 ). Plaintiff was entitled to rely upon the surgeon's postoperative report, because the report was referenced and relied upon by defendant's experts (Amamedi v. Archibala, 70 A.D.3d 449, 895 N.Y.S.2d 42 1st Dept.2010, lv. denied 15 N.Y.3d 713, 2010 WL 4628589 2010 ).