Hoisted by one’s own petard

JT posted the case first, but I like my title better.

Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010)

Contrary to the Supreme Court's determination, the defendants failed to
meet their prima facie burden of showing that the plaintiff did not
sustain a serious injury within the meaning of Insurance Law § 5102(d)
as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). The defendants, in support of their motion, relied
on some of the plaintiff's own medical reports. One such report was that
of the plaintiff's treating physician, Dr. Joyce Goldenberg, which
revealed the existence of a significant limitation in the plaintiff's
right knee flexion
(see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212
AD2d 515). The other was an operative report of the plaintiff's
treating orthopedic surgeon, Dr. Richard Seldes, which revealed, inter
alia, the existence of a tear in the posterior horn of the medial
meniscus in the right knee.
Since the defendants did not meet their
prima facie burden, it is unnecessary to determine whether the papers
submitted by the plaintiff in opposition were sufficient to raise a
triable issue of fact (see Guerrero v Bernstein, 57 AD3d at 845; Mendola v Demetres, 212 AD2d at 515).

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