Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the grounds that the injuries of plaintiff Tracy Ann Mistretta fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is denied. That portion of the motion which seeks dismissal of the property damage claim set forth by plaintiff Robert Mistretta is granted without opposition.

This matter arises out of a two vehicle accident which occurred on September 17, 2004, at the intersection of Richmond Avenue and Arthur Kill Road, Staten Island, New York. As a result, plaintiff Tracy Ann Mistretta claims to have sustained "serious" personal injuries, i.e., "consequential limitation and significant limitation of use of a body function" by way of "acute traumatic cervical pains and strains; lumbosacral strain with left sided radiculitis; scoliosis; tingling and numbness in her left upper extremity; neck pain and strain; muscle spasms; left knee pain; left knee swelling; hip pain; loss of motion, flexion and extension of knee and shoulder; and post traumatic headaches" (Plaintiffs' February 22, 2006 Verified Bill of Particulars, para 8 [Defendants' Exhibit C]). The claim of plaintiff Robert Mistretta is for property damage for which he was admittedly reimbursed by his own insurance carrier, Geico Insurance Company.

In support of their motion for summary judgment, defendants have submitted the October 30, 2006 affirmation of an orthopedist, Dr. Herbert S. Sherry, who found that plaintiff's "physical [*2]examination...fail[ed] to reveal any objective orthopedic evidence of residual [injury] directly related to the alleged accident" (see Affirmed report dated October 30, 2006). Also submitted is the September 15, 2006 affirmation of a neurologist, Dr. Adam N. Bender, who found "no objective evidence of any neurological problem that would explain [plaintiff's] persistent subjective complaints". However, he did note that plaintiff appears to suffer from a pre-existing condition of scoliosis (see Affirmed report dated September 15, 2006).

In opposition, plaintiff argues that her left knee injury is "serious" within the meaning of Insurance Law §5102(d), and attaches, inter alia, the February 27, 2007 affirmation of her orthopedic surgeon, Dr. Struan Colemen, who states that the 30% loss in range of motion in plaintiff's left knee has not responded to physical therapy and will require corrective surgery. He further states that the arthroscopic surgery scheduled for plaintiff's left knee is needed "in order to attempt to decrease and/or eliminate the restriction of motion and loss of use of her knee and inability to engage in her ordinary daily activities." According to Dr. Coleman, plaintiff's knee injury is "a direct result of [the] motor vehicle accident on September 17, 2004" (Plaintiff's Affirmation in Opposition, Exhibit A).

In the opinion of this Court, defendants have made a prima facie showing that plaintiff Tracy Ann Mistretta failed to sustain a serious injury within the meaning of Insurance Law §5102(d) through the affirmations of their medical experts (see Holmes v. Hanson, 286 AD2d 750, citing Duldulao v. City of New York, 284 AD2d 296; Villalta v. Schechter, 273 AD2d 299; Nisnewitz v. Renna, 273 AD2d 210; Guzman v. Michael Mgt., 266 AD2d 508; Kosto v. Bonelli, 255 AD2d 557). Accordingly, it is incumbent upon plaintiff to come forward with evidence demonstrating the existence of a triable issue of fact that she sustained a serious injury (see Gaddy v. Eyler, 79 NY2d 955).

Here, plaintiff has successfully met this burden through the affirmation of Dr. Coleman. Dr. Coleman's opinion, e.g., as to the permanence of plaintiff's injury in the absence of surgery, is predicated upon objective medical evidence in the form of range of motion testing, wherein he quantified and stated the limitations exhibited by plaintiff as a percentage of "normal" (see Toure v. Avis Rent A Car Sys., 98 NY2d 345). While counsel for plaintiff acknowledges that the January 19, 2007 MRI study of plaintiff's left knee was inconclusive (see Affirmation in Opposition, para 17), Dr. Coleman has adequately explained the extent of plaintiff's injury and the need for surgery to ascertain and repair the damage to plaintiff's patellar cartilage. This surgery is scheduled for May 7, 2007.

The contrary opinions of the respective experts must be resolved at a trial. "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Corbett v. County of Onondaga, 291 AD2d 886, 887, quoting Williams v. Luciantelli, 259 AD2d 1003, 1003 [internal quotation marks omitted]).

Finally, defendants' claim that plaintiff should be precluded from claiming future scarring as a form of serious injury is without merit. In making this argument, defendants have not taken into account plaintiff's ability to supplement her Bill of Particulars if and when the surgery takes place. In the event that plaintiff can establish at trial "a prima facie case that any one of [the]several injuries that...she sustained in [the] accident is a serious injury' within the meaning of Insurance Law §5102(d), she is entitled to seek recovery for all [of the] injuries incurred as a result of the accident" (O'Neill v. O'Neill, 261 AD2d 459, 460 citing Preston v. Young, 239 AD2d 729, 731-732; Kelley [*3]v. Balasco, 226 AD2d 880; Matula v. Clement, 132 AD2d 739; Prieston v. Massaro, 107 AD2d 742).

Having been reimbursed for his property damage by his insurance carrier, plaintiff Robert Mistretta's cause of action for the recovery of same in these proceedings must be dismissed.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment against plaintiff Tracy Ann Mistretta is denied, and it is further

ORDERED, that defendants' motion for summary judgment against plaintiff Robert Mistretta is granted, and the complaint of this plaintiff is severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment in favor of defendants and against Robert Mistretta as outlined above.

E N T E R,

Dated:May 2, 2007/s/ Philip G. Minardo

J.S.C.