Recitation, as required by CPLR 2219[a], of the papers considered in review of the Defendant Rafael Cruz’ Motion and Defendant Max Volovniks Cross-motion for summary judgment (Sequence 007 & 09)
Papers NYSCEF Numbered
Notice of Motion and Affirmation 169-180
Notice of Cross Motion and Affirmation 210-213
Answering Affirmation 227-242
Reply Affirmation 243
A Motion by Defendant Rafael Cruz and a Cross-motion by defendant Max Volovnik for summary judgment seeking dismissal on the basis that plaintiffs did not sustain serious personal injuries duly come on to be heard before this Court on July 27, 2022, and after oral argument on the record and due deliberation, the decision of the Court is as follows:
Defendant Rafael Cruzs motion and Defendant Max Volovniks cross motion for summary judgment to dismiss Plaintiffs’ complaint on the ground they did not sustain a serious injury are denied.
In opposition, plaintiff submitted among other evidence the affirmations of Dr. Vladimir Shur the plaintiffs’ treating surgeon and the affirmations of Dr. Howard I. Baum, Plaintiffs’ Expert, an orthopedic surgeon, who in addition to reviewing plaintiffs’ medical records conducted a recent physical examination of both plaintiffs on December 21, 2021.
The plaintiff Jonathan Caban established through the affirmation of Dr. Shur that the injury to his right knee was casually related to his accident of February 2, 2016. Dr. Shur, upon the medical history presented by Jonathan Caban that his current symptoms were non-existent prior to the accident, his physical examinations of the plaintiff, his review of the MRI film of the right knee which DR. Shur opined showed no evidence of degeneration, and his direct visualization of the injury during arthroscopic surgery, concluded that the tear to the anterior cruciate ligament was causally related to the accident of February 2, 2016. It is noted that Dr. Audrey Eisenstadt who performed a film review of the MRI of Jonathan Cabans right knee just addressed the meniscal injury to plaintiffs right knee which she opined was degenerative while noting anterior and posterior cruciate ligaments are normal in appearance.
The plaintiff Leonardo Davis established through the affirmation of Dr. Shur that the injury to his left knee was causally related to his accident of February 2, 2016. Dr. Shur based upon the medical history presented by Leonardo Davis that his current symptoms were non-existent prior to the accident, his physical examination of the plaintiff, his review of diagnostic testing of plaintiffs left knee which Dr. Shur opined showed no evidence of degeneration and his direct visualization of the injury during arthroscopic surgery concluded that the injury sustained to plaintiff Leonardo Davis’ left knee was casually related to the accident of February 2, 2016.
Plaintiffs’ Expert, Dr. Howard I. Baum concurred with Dr. Shurs opinion that the injury to plaintiff Jonathan Cabans right knee and the injury to plaintiff Leonardo Davis’ left knee were causally related to their accident of February 2, 2016. Dr. Baum also concurred with Dr. Shur that the surgeries performed on the plaintiffs were necessitated by the injuries they sustained in the accident.
Dr. Baum upon physical examination of the plaintiff Jonathan Caban on December 21, 2021 found a 30-degree loss in flexion motion of plaintiffs right knee, a 45-degree loss of flexion and abduction of the right shoulder and a 20-degree loss of flexion motion of the lumbar spine. Dr. Baum opined plaintiff, born in 1990 is at a high risk for recurrent treatment and surgeries. Dr. Baum upon physical examination of the plaintiff Leonardo, born in 1986 found a 30-degree loss in flexion motion of plaintiffs right knee, a 45-degree loss of flexion and abduction of the right shoulder and a 20-degree loss of flexion motion of the lumbar spine. Dr. Baum opined plaintiff will require future treatment and surgery during the rest of his life. Based on the foregoing, plaintiffs Jonathan Caban and Leonardo have therefore raised a triable issue of fact as to whether they sustained a serious injury (See In Kelly v. Andrew 172 AD3d 833, 97 N.Y.S. 3d 880[2nd Dept. 2019].
Defendants’ motion and cross motion for summary judgement are accordingly denied.
Odessa Kennedy, J.