Upon the foregoing papers, the motion (No. 732) for summary judgment and dismissal of the complaint by defendant-third party plaintiff Marco Anibal Vaca on the ground that plaintiffs' injuries are not "serious" within the meaning of §5102(d) of the Insurance Law is denied as superceded by the amended motion (No. 1440) for like relief; the amended motion is denied.

This matter arises out of a two-vehicle accident which occurred on April 24, 2002, at the intersection of 86th and Van Sicklen Streets in Brooklyn, New York. According to the complaint, plaintiff Anthony Navarra (hereinafter "plaintiff"), a police officer traveling as passenger in a police van owned by third-party defendant the City of New York, claims to have sustained extensive personal injuries when the van was cut off and then struck by a taxi cab operated by defendant- third [*2]party plaintiff Marco Anibal Vaca. In his bill of particulars plaintiff alleges that as a result of this accident he has suffered, inter alia, "significant disfigurement; permanent loss of use of a body organ or member; significant limitation of use of a body function or system; [and/or] a medically determined injury or impairment of a non-permanent nature which prevent[ed him] from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence" (Plaintiffs' October 20, 2004 Verified Bill of Particulars, paragraph 20 [Defendant's Exhibit C]). More particularly, plaintiff claims to have sustained a"left knee oblique tear of the anterior horn lateral meniscus extending to the tibial articular surface; intrasubstance meniscal signal changes of the left knee; left knee joint effusion;....restriction of movement to the left knee, [and] decreased range of motion of left knee," all of which required arthroscopic surgery on August 28, 2002 that led to scarring at the surgical site (id. at para 11).

In support of his motion for summary judgment, defendant Vaca has submitted the affirmations of an orthopedic surgeon, Dr. Wayne Kerness, a neurologist, Dr. Leonid Topper, and a radiologist, Dr. Marc Brown, each of whom opine, in essence, that plaintiff has fully recovered from any injury causally related to the subject accident or, in the case of Dr. Brown, that the injury appears to have been pre-existing (see Defendant's Exhibit D).

In opposition, plaintiff argues that his knee injury is "serious" within the meaning of Insurance Law §5102(d), and attaches, inter alia, the affidavits of his treating orthopedic surgeon, Dr. Joseph Giovannzzo (see Plaintiffs' Exhibit A), the radiologist who interpreted the May 7, 2002 MRI, Dr. David Rosenthal (see Plaintiffs' Exhibit B), and his treating physical therapist, Maureen Becker, PT (see Plaintiffs' Exhibit F), each of whom takes the position that plaintiff's injury and the subsequent surgery were causally related to the April 24, 2002 accident.

As previously indicated, the motions are denied.

In the opinion of this Court, defendant has made a prima facie showing that plaintiff did not sustain a "serious injury" through the affirmations of his medical experts, whose detailed objective testing and/or independent evaluation of the MRIs of plaintiff's left knee indicated that any causally related injuries whichplaintiff may have suffered in the accident had resolved (see Nagbe v Minigreen Hacking Group, 22 AD3d 326; Holmes v. Hanson, 286 AD2d 750, citing Duldulao v. City of New York, 284 AD2d 296; Villalta v. Schechter, 273 AD2d 200; Nisnewitz v. Renna, 273 AD2d 210; Guzman v Michael Mgt., 266 AD2d 508; Kosto v. Bonelli, 255 AD2d 557). Accordingly, it was incumbent upon plaintiff to come forward with sufficient evidence demonstrating the existence of a triable issue of fact on serious injury in order to avoid summary judgment (see Gaddy v. Eyler, 79 NY2d 955). Here, plaintiff has successfully met this burden.

When read together, the affidavits of Drs. Giovannazzo and Rosenthal are sufficient to raise a triable issue of fact as to the seriousness of the injury to plaintiff's left knee (i.e., the torn meniscus), which was not only objectively determined, but required corrective surgery within three months of the subject accident. In addition, plaintiff's experts have opined that the injury in question [*3]was a consequence of this accident, and that it has prevented plaintiff from engaging in the kinds of activities in which he previously participated. At a minimum, this evidence raises a triable issue of fact as to whether plaintiff sustained a "significant limitation of use of a body function or system" under Insurance Law §5102 (d) (see Pollas v. Jackson, 2 AD3d 700 and cases cited therein).

"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]). Here, the evidence of the surgical repair of plaintiff's torn meniscus, and the conflicting opinions of the parties' experts, are more than sufficient to raise a triable issue of fact as to whether or not plaintiff has sustained a "serious injury" (see Noriega v. Sauerhaft, 5 AD3d 121; see also Rangel-Vargas v. Vurchio, 289 AD2d 92).

Accordingly, it is

ORDERED, that defendant's motion and amended motion for summary judgment are denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: JAN 11, 2008/s/

HON. THOMAS P. ALIOTTA, J. S. C.