NUNEZ v. ZHAGUI

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Supreme Court, Appellate Division, First Department, New York.

Hector NUNEZ, Plaintiff-Respondent, v. Luis R. ZHAGUI, Defendant-Appellant.

Decided: March 26, 2009

ANDRIAS, J.P., GONZALEZ, BUCKLEY, ACOSTA, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Holly E. Peck and Stacy R. Seldin of counsel), for appellant. Friedman & Moses, LLP, Garden City (Lisa M. Comeau of counsel), for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered August 8, 2008, which, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

After defendant's showing of prima facie entitlement to summary judgment, the court properly found that plaintiff raised a triable issue of fact through his treating doctor's affirmation, which, when considered in connection with MRIs taken within weeks of the accident, found objective medical findings of range of motion limitations contemporaneous with the accident and upon recent examination (see Thompson v. Abbasi, 15 A.D.3d 95, 97, 788 N.Y.S.2d 48 [2005] ).   The existence of a serious injury is also supported by the affirmed report of the orthopedic surgeon who performed surgery on plaintiff's left knee 2 1/212 years after the accident, and found, among other things, a crack on the lateral facet of the patella (see Morris v. Cisse, 58 A.D.3d 455, 871 N.Y.S.2d 113 [1st Dept. 2009] ).

We have considered defendant's remaining contentions and find them unavailing.