| Torres v Villanueva |
| 2011 NY Slip Op 09028 [90 AD3d 523] |
| Dcmbr 15, 2011 |
| Appellate Division, First Department |
| Richard Torres, Respondent, v Jose Villanueva et al.,Appellants. |
—[*1] Ephrem J. Wertenteil, New York, for respondent.
Order, Supreme Court, Bronx County (Mary Brigantti-Hughes, J.), entered May 12, 2011,which, in an action for personal injuries sustained in a motor vehicle accident, denied defendants'motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
On October 23, 2008, as then 29-year-old plaintiff Richard Torres was crossing the street, alivery cab owned by defendant Sheridan, Inc. and operated by defendant Jose Villanueva struckhim in the knees and knocked him to the ground. Despite complaints of knee pain, plaintiff wasdiagnosed with left distal thigh contusion during his initial medical evaluations at the emergencyroom of a hospital the morning after the accident, and during his initial October 28, 2008 visitwith Dr. Orsuville Cabatu, a specialist in physical and rehabilitation medicine. Pursuant toevaluations by other physicians, he had knee surgery on December 2008.
Defendants met their initial burden of demonstrating absence of significant limitation of useof plaintiff's left knee by submitting a report from radiologist Peter Ross, M.D. showing onlydegenerative changes in the menisci in an otherwise normal knee, and a December 2009 reportfrom orthopedist Gregory Montalbano, M.D. showing that objective tests revealed full range ofmotion, that plaintiff sustained a left thigh contusion that had resolved, and that plaintiff's obesityand patellofemoral syndrome contributed to plaintiff's knee condition (see Cabrera v Gilpin, 72 AD3d552 [2010]).
In response, plaintiff submitted the report of orthopedist Stanley Liebowitz, M.D. showingthat plaintiff saw him on October 29, 2008 complaining that daily activities (standing, walking,stair climbing, and his job duties as a bus driver) increased the level of knee discomfort, and adiagnosis of post-traumatic tenosynovitis based on the doctor's observations of mild effusion andtenderness. Pursuant to a radiologist's MRI findings of joint effusion and tears in the lateralcollateral ligament and anterior cruciate ligament, Dr. Liebowitz performed knee surgery inDecember 2008, during which he discovered a "crush injury" of the medial femoral condyle,"extensive synovitis," and a torn and lax anterior cruciate ligament with positive anterior drawersign and Lachman testing. A February 2009 report of Dr. Cabatu noted that plaintiff stillcomplained of pain, especially when bending or squatting, and tenderness on palpation. Plaintifftestified at his November 2009 deposition that he still saw Dr. Cabatu for physical therapy, andthat he could not pick up his children, climb stairs, bend, run, exercise, or stand for long periodswithout feeling knee pain. The report of orthopedist Paul Post, M.D., who examined plaintiff inOctober 2010, noted a 20-degree limitation in flexion of the knee, and tenderness and thicknessof the synovium. The evidence of limitations, and injuries set forth in the MRI and operativereports, raise a factual issue as to existence of a significant limitation of use of the knee (seeToure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]).
The evidence of plaintiff's treatment, which began days after the accident, including Dr.Liebowitz' sufficiently contemporaneous findings during surgery of a crush injury and positiveanterior drawer sign and Lachman testing, raises an issue of fact as to causation (see Salman v Rosario, 87 AD3d482 [2011]). Plaintiff adequately addressed defendants' evidence of degenerative andpreexisting conditions (see Perl v Meher, 18 NY3d 208 [2011]; Pommells v Perez, 4 NY3d 566,580 [2005]). Concur—Tom, J.P., Friedman, Freedman, Richter and Manzanet-Daniels, JJ.