Accident Victim Who Had Knee Surgery Beats Defense No-Fault "Serious Injury" Summary Judgment Threshold Motion

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

Case: Winslow Pakeman v. Venant Karekezia

Date: September 4, 2012

From: New York attorney Gary E. Rosenberg

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Facts: In this car accident case, defense granted summary judgment on the No-Fault "serious injury" threshold, dismissing the accident victim's complaint. Accident victim appealed the loss.

The accident occurred on July 30, 2009. The case centers around whether the injured plaintiff made out a case for a left knee injury.

Defense argument: The defense had a doctor examine the automobile accident victim and write a report that his knee was o.k. and that it had normal ranges of motion. Also, the defense had its own expert review plaintiff's MRI films and argued that any damage to the knee was from wear-and-tear or "degenerative" and not from an accident-related injury -- even though the plaintiff was only 32 years-old. The defense thus argued that there was no injury present that constituted a "serious injury" and that, under New York State's No-Fault laws, the accident victim's case should be dismissed.

Plaintiff's argument: This accident victim had arthroscopic surgery to his knee. To oppose the defense summary judgment motion he submitted an affirmation from his own surgeon -- who had seen inside the knee -- and was in a position (probably the best position of any of the doctors who weighed-in on this claim) to say that there was an accident-related injury there and that there was permanent damage to the knee. Also, plaintiff had never complained of any knee problems before the accident.

Held: The plaintiff has shown that there is an issue of fact as to whether he suffered a serious injury comprising a permanent consequential limitation of use of a body function or system and/or a significant limitation of use of a body organ, member, function or system. This case survives dismissal and the injured plaintiff lives to fight his accident case another day.

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