Opinion
2013-04-2
Samuel CAINES, Plaintiff–Respondent, v. Sandouchi DIAKITE, Defendant–Appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellant. Law Office of Vel Belushin, P.C., Brooklyn (Georgette Hamboussi of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellant. Law Office of Vel Belushin, P.C., Brooklyn (Georgette Hamboussi of counsel), for respondent.
TOM, J.P., MOSKOWITZ, RICHTER, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 14, 2011, which denied defendant's motion for summary judgment dismissing the complaint based on the failure to establish a serious injury pursuant to Insurance Law § 5102(d), unanimously affirmed, without costs.
Defendant established prima facie his entitlement to judgment by showing that the injuries the 60–year–old plaintiff allegedly sustained to his cervical and lumbar spine and left knee were not serious injuries within the meaning of Insurance Law § 5102(d). Plaintiff, however, has raised a triable issue of fact as to whether he sustained a serious injury of the left knee sufficient to defeat the motion. Plaintiff had no history of injury to the knee prior to the accident. The MRI of plaintiff's knee, taken shortly after the accident in March 2006, revealed “an oblique tear of the posterior horn of the medial meniscus contacting the inferior surface.” Plaintiff's expert orthopedist, Dr. Lubliner, opined in a January 2011 report that the subject accident was the competent cause for injuries to plaintiff's left knee and the medial meniscal tear. He concluded that “[d]ue to the longevity of the symptomatology,the positive clinical findings and the positive MRI report,” that arthroscopic surgery was necessary to repair the torn medial meniscus. Five years after the accident, plaintiff experiences buckling of the knee with walking, and complains of difficulty going up and down stairs and in standing up from a seated position. By ascribing plaintiff's left knee injury to a different, yet equally plausible cause, the affirmations of plaintiff's experts suffice to raise an issue of triable fact ( see Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [1st Dept. 2011]; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 482, 915 N.Y.S.2d 529 [2011];Biascochea v. Boves, 93 A.D.3d 548, 940 N.Y.S.2d 599 [1st Dept. 2012]; Williams v. Perez, 92 A.D.3d 528, 938 N.Y.S.2d 536 [1st Dept. 2012]; Grant v. United Pavers Co., Inc., 91 A.D.3d 499, 937 N.Y.S.2d 20 [1st Dept. 2012] ).
We need not address plaintiff's additional injuries since he raised a triable question of fact as to whether he suffered a serious injury that was causally related to the accident ( see Delgado v. Papert Tr., Inc., 93 A.D.3d 457, 458, 939 N.Y.S.2d 457 [1st Dept. 2012] ).
Plaintiff's loss of time from work for, at most, two weeks was not sufficient to raise an issue of fact as to his 90/180–day claim ( see Arenas v. Guaman, 98 A.D.3d 461, 949 N.Y.S.2d 688 [1st Dept. 2012]; Williams v. Baldor Specialty Foods, Inc., 70 A.D.3d 522, 522–523, 895 N.Y.S.2d 394 [1st Dept. 2010] ).
We have considered defendant's remaining contentions and find them unavailing.