Order, Supreme Court, New York County (Milton Tingling, J.), entered June 6, 2002, which, insofar as appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion granted and the complaint dismissed. The clerk is directed to enter judgment accordingly.
Plaintiff, born in 1966, first injured his right knee while playing football at the age of 15. Several years later, in 1986, he underwent surgery to repair his anterior cruciate ligament. In March 1993, plaintiff again injured his right knee in a workplace mishap, and since then has been receiving disability payments based on the resulting infirmity of that knee. The knee condition required plaintiff to undergo anterior cruciate ligament reconstructive surgery in February 1995 and arthroscopic surgery in February 1997, the latter resulting in a diagnosis of a tear of the medial meniscus and chondromalacia. As of 1997, plaintiff was using a cane and wearing a knee support. On April 27, 1998, plaintiff’s treating physician, Dr. Francis Pflum, diagnosed a new tear of the lateral meniscus of the right knee, and requested that the workers’ compensation carrier authorize an additional arthroscopic surgery to excise the damaged tissue. On May 8, 1998, the Workers’ Compensation Board directed the carrier to send Dr. Pflum a written authorization for such surgery.
On May 19, 1998—11 days after the aforementioned action of the Workers’ Compensation Board—plaintiff was involved in a motor vehicle accident that he now alleges was the cause of “serious injury” (within the meaning of Insurance Law § 5102 [d]) to his already battered right knee. The question presented is whether, in response to defendant’s well-supported summary
Plaintiffs opposition to the summary judgment motion utterly failed to meet the foregoing standards. The sole medical evidence on which plaintiff relied was Dr. Pflum’s affidavit and a file note by the same physician, dated three days after the subject accident. Although these documents state a diagnosis of “acute soft tissue injury” and a possible “bone bruise,” and the affidavit asserts in conclusory fashion that the May 1998 accident caused “exacerbations to [plaintiff’s] prior right knee condition,” neither document sets forth any assessment of a statutory serious injury that meets the standards of Toure. The affidavit and the file note fail to offer any quantitative assessment, in terms of numeric percentage, of the range of motion lost specifically as a result of this accident. The documents also fail to offer a qualitative assessment of how the subject accident reduced the functioning of the knee below the level of function that existed immediately prior to the accident. Further, the documents do not set forth any objective medical evidence substantiating a finding that the subject accident caused a serious injury.
Rosenberger and Lerner, JJ., dissent in a memorandum by Rosenberger, J., as follows: Defendants contend that the injuries to plaintiffs knee predated the accident and that the exacerbation of his condition, as found by examinations conducted by his physician both before and after the incident, does not meet the statutory threshold (Insurance Law § 5102 [d]). Notably, this Court has found similar injuries to be “serious” within the contemplation of the statute (Duarte v Ester,
Defendants have failed to establish a prima facie case of entitlement to summary judgment. The contradictions which they identify raise factual issues requiring resolution by the trier of fact (Sillman v Twentieth Century-Fox Film Corp.,
Accordingly, the order should be affirmed.
Notes
Although the file note states that an x ray was taken, the only thing Dr. Pflum appears to have determined from reading the x ray was the absence of any “acute fracture.”