JAMES C. FRANCIS IV, United States Magistrate Judge.
This is a personal injury action arising out of a motor vehicle accident and is
On March 1, 2012, Mr. Vaneden was a passenger in the front seat of Mr. Satterfield's vehicle when an accident occurred at around 8 p.m. (Deposition of Paul Vaneden dated Jan. 9, 2015 ("Vaneden Dep."), attached as Exh. S to Declaration of Lindsay J. Kalick dated June 15, 2015 ("Kalick Decl."), at 5, 21-22).
Mr. Vaneden testified in his deposition that after impact with the cab, his right leg "kind of twisted and hit the dashboard or the glove compartment" of Mr. Satterfield's vehicle and that he was "shaken up" but "semi-conscious." (Vaneden Dep. at 39). Both he and Mr. Satterfield were removed from the car by onlookers, after which an ambulance and the police arrived at the scene of the accident. (Vaneden Dep. at 40, 49). Mr. Vaneden told the paramedics that he "felt pain in his right knee, neck and back." (Defendants' Local Rule 56.1 Statement of Undisputed Fact ("Def. 56.1"), ¶ 3). He was given a neck brace, placed on a stretcher, and taken by ambulance to Jacobi Hospital, where he received a CAT scan of his head. (Vaneden Aff. at 1; Def. 56.1, ¶ 3; Report of Gerald F. Gaughan, M.D., dated June 17, 2015 ("Gaughan 6/17/15 Report"), attached as part of Exh. E to Kafko Decl., at 1). He was released later that evening. (Def. 56.1, ¶ 3).
Although Mr. Vaneden was unsure of the next time he sought medical treatment following the accident, records indicate that he began a course of physical therapy in March or April of 2012. (Plaintiff's Response to Defendants' Local Rule 56.1 Statement of Undisputed Facts ("Pl. 56.1"), ¶ 4; Gaughan 6/17/15 Report at 1). The plaintiff continued physical therapy with Dr. Gerald Gaughan for a number of
In March 2014, Chris Moros, D.O., performed right knee arthroscopic surgery on Mr. Vaneden. (Pl. 56.1, ¶ 6; Affirmed Reports of Chris Moros, D.O. ("Moros Report"), attached as Exh. H to Kafko Decl., at 2). The plaintiff was discharged after the surgery, but subsequently used a cane for a few weeks and then transitioned to using a brace, which he continues to wear approximately twice per month. (Vaneden Dep. at 66-68). Following the surgery, Mr. Vaneden saw Dr. Moros for physical therapy and continues to see him for monthly evaluations. (Moros Report at 2; Vaneden Dep. at 68). He also received a corticosteroid injection in his right knee in May 2014 for post-operative discomfort and persistent pain. (Moros Report at 2). Dr. Moros told the plaintiff that an MRI performed after the surgery "did not find any further tearing or problems in his right knee." (Def. 56.1, ¶ 8). As of July 14th, the plaintiff had not attended physical therapy for his right knee in 2015. (Pl. 56.1, ¶ 9).
In June 2014, Mr. Vaneden began experiencing pain in his left knee, where he had undergone anterior cruciate ligament ("ACL") surgery in 2007. (Moros Report at 2; Vaneden Dep. at 12-13). After an MRI of the plaintiff's left knee in October 2014, Dr. Moros told him that the knee was "torn," which often happens a number of years after ACL surgery. (Vaneden Dep. at 70-71; Pl. 56.1, ¶ 7). Mr. Vaneden elected to not have another surgical procedure and was prescribed continued physical therapy and bracing. (Moros Report at 2; Vaneden Dep. at 70-71). He continues to experience periodic "stabbing pain" in his right knee and pain in his neck and lower back, for which he takes Vicodin.
The plaintiff testified that in an automobile accident in 2007, he injured his back and left knee, and required ACL surgery as a result. (Vaneden Dep. at 12-13, 16). In 2012, he was involved in an altercation with the police, during which he "was thrown on the floor and kind of roughed up and stepped on in [his] stomach area." (Vaneden Dep. at 78; Def. 56.1, ¶ 12). Mr. Vaneden was also involved in a motor vehicle accident in March 2013, in which he rear-ended another car. (Vaneden Dep. at 90). During the two years that elapsed between the subject accident and Mr. Vaneden's
Mr. Vaneden is 53 years old. He was not working at the time of the March 2012 accident and has not been employed since. (Vaneden Dep. at 8-9). Before the accident, his daily routine consisted of "[n]othing really," and he spent most of his time at home or visiting a friend. (Vaneden Dep. at 91-92; Pl. 56.1, ¶ 10). The plaintiff testified that because of the injuries he sustained in the 2012 accident, he can no longer run, play basketball, enjoy dancing, or "walk for too long." (Vaneden Dep. at 86, 88-89). He also "walk[s] with a limp"; he stated that the accident has "made [his] life incredibly more difficult." (Vaneden Aff. at 2).
The Linden defendants' expert orthopedic surgeon, Dr. Grelsamer, conducted a review of Mr. Vaneden's medical records and examined him with respect to his right knee in January 2015. (Def. 56.1, ¶ 13; Affirmed Letter of Ronald Grelsamer, M.D., dated Jan. 28, 2015 ("Grelsamer Report"), attached as part of Exh. T to Kalick Decl., at 1, 4; Affirmed Addendum by Ronald Grelsamer, M.D., dated March 9, 2015 ("Grelsamer Addendum"), attached as part of Exh. T to Kalick Decl., at 1). Dr. Grelsamer conducted range of motion tests with a protractor on the plaintiff's knees and found a range of "10 to 110 degrees on the right versus 0 to 115 degrees on the left"; he noted that a normal range is 0 to 130 degrees or more. (Grelsamer Report at 4). Upon examination, Mr. Vaneden demonstrated a "negative Ober sign on the left and a moderately positive Ober sign on the right, indicating a tight ilio-tibial band." (Grelsamer Report at 4). He was tender around the knee at the joint line and had "nonspecific pain with meniscal maneuvers." (Grelsamer Report at 4-5). The knee was stable to varus and valgus tests and there was no effusion, increased redness or masses, no skin sensitivity, and no atrophy as measured ten centimeters above the patella. (Grelsamer Report at 4-5). During the examination, the plaintiff described pain "at the medial aspect" of his right knee that was brought on by walking for 15 minutes or bending; he did not cite any issues with his left knee. (Grelsamer Report at 4). He displayed no acute distress while sitting, standing, and walking, but had a "careful gait." (Grelsamer Report at 4).
Dr. Grelsamer also reviewed imaging studies of Mr. Vaneden's knees post-dating the subject accident. Although many of the images were so grainy as to be "non-diagnostic," Dr. Grelsamer noted that a right knee MRI from October 2014 showed the existence of a "small bone spur" at the lateral aspect of the trochlea and the patella and "non-specific signal changes in the posterior horn of the medial meniscus." (Grelsamer Report at 3). MRI pictures of the same knee from August 2012 demonstrated a moderate effusion and some arthritic changes, as well as signal changes to the meniscus, which also had "multiple focal small lucencies consistent with a degenerative process." (Grelsamer Addendum at 1; Grelsamer Report at 6). Dr. Grelsamer concluded that the August 2012 MRI had no features suggesting trauma and that all the aberrational findings were "common" in an adult male of Mr. Vaneden's age. (Grelsamer Addendum at 1-2).
Dr. Raps, the Linden defendants' expert neurologist, performed a neurologic examination of the plaintiff in April 2015, and reviewed his medical records with respect to his neck and back. (Def. 56.1, ¶ 14; Letter of Mitchell S. Raps, M.D., dated April 17, 2015 ("Raps Report"), attached as Exh. U to Kalick Decl., at 1). Dr. Raps found that Mr. Vaneden's reported sensory symptoms were "simply non-physiologic" because he reported normal vibration sense throughout his right lower extremity and had intact position sense in his right toes; however, he noted that the plaintiff reported decreased intensity to pinprick sensation on his right leg. (Raps Report at 9).
The plaintiff presented a reduced range of motion in his cervical spine, neck, and waist. (Raps Report at 9). However, Mr. Vaneden did not complain of spine tenderness when palpated. (Raps Report at 9). Dr. Raps concluded that Mr. Vaneden presented a highly significant reduction in extension, a moderate reduction in bilateral lateral rotation, and a mild degree of reduction to neck flexion, but noted that the mechanical evaluation of range of motion was "entirely subjective in nature." (Raps Report at 9-10). Dr. Raps further noted that the plaintiff's reported ability to climb two flights of stairs to his house and operate a vehicle was "not consistent with an individual who said he was experiencing significant low back pain." (Raps Report at 10).
Although Dr. Raps believed Mr. Vaneden's gait to be at times "exaggerated," he found that some degree of antalgia was present. (Raps Report at 8-9). He formed this belief based on his observation that the plaintiff's gait as he exited Dr. Raps' office was "considerably less antalgic" than the gait presented during the exam. (Raps Report at 9). Dr. Raps opined that Mr. Vaneden was "capable of
The Linden defendants' expert radiologist, Dr. Coyne, reviewed a number of radiology examinations of Mr. Vaneden's spine and knees. (Def. 56.1, ¶ 15; Affirmed Letter of Scott S. Coyne, M.D., dated Feb. 27, 2015 ("Coyne Report"), attached as Exh. V to Kalick Decl., at 1). A July 5, 2012 MRI of the plaintiff's cervical spine showed "multilevel degenerative disc changes" and "mild degenerative narrowing of the C6-7 neural foramina." (Coyne Report at 1). Dr. Coyne's review of the plaintiff's August 2012 right knee MRI showed tricompartmental degenerative osteoarthritic changes, "extensive degenerative attenuation of the substance of the medial meniscus," and joint effusion. (Coyne Report at 2). An MRI of Mr. Vaneden's lumbosacral spine from August 2012 showed moderately advanced degenerative facet joint changes, advanced degenerative disc changes, and degenerative narrowing of the neural foramina at L4-5. (Coyne Report at 2). Dr. Coyne noted that there was no evidence of focal disc herniation, significant central spinal stenosis, compression, or displacement of the cauda equina at any level. (Coyne Report at 2).
After reviewing an x-ray of the plaintiff's left knee from June 2014, Dr. Coyne found advanced degenerative osteoarthritic changes, and no evidence of acute osseous trauma or joint effusion. (Coyne Report at 2). An x-ray of Mr. Vaneden's right knee from the same date also showed advanced degenerative osteoarthritic changes, unremarkable soft tissues and no joint effusion. (Coyne Report at 3).
A left knee MRI from October 2014 showed prior ACL reconstruction, advanced degenerative joint changes, and degenerative change of the posterior horn of the medial meniscus, but no fracture, dislocation, or contusion. (Coyne Report at 3). Dr. Coyne found that a right knee MRI from October 2014, when compared to the right knee MRI from August 2012 (both of which were also reviewed by Dr. Grelsamer), continued to show tricompartmental degenerative osteoarthritic changes, degenerative attenuation of the posterior horn of the medial meniscus, and mild degenerative splaying of the medial collateral ligament. (Coyne Report at 3). There was no evidence of a medial or lateral meniscus traumatic tear, and the joint effusion had "resorbed." (Coyne Report at 3).
Dr. Coyne's overall impression was that the radiology examinations of Mr. Vaneden's left and right knee demonstrated "advanced degenerative joint changes" and "pronounced degenerative changes of the medial menisci." (Coyne Report at 3). He found that the cervical and lumbosacral spine MRIs showed degenerative disc and facet joint changes and no evidence of acute traumatic injury. (Coyne Report at 3). Additionally, Dr. Coyne observed that all of the degenerative changes of the plaintiff's spine and knees were "certainly chronic, long-standing, pre-existent and not causally related to the March 1, 2012 incident," and that none of the x-rays or MRIs he reviewed showed any "osseous or soft tissue abnormality or other trauma causally related" to the accident. (Coyne Report at 4).
The plaintiff submitted a copy of his records from Jacobi Medical Center regarding his emergency room treatment on March 1, 2012; however, they are not accompanied by a doctor's affirmation. (Treatment Notes of Paul Vaneden dated
The plaintiff identifies Dr. Gaughan as his "initial treating physician." (Pl.56.1, ¶ 13). While Dr. Gaughan noted in his affirmed letter that Mr. Vaneden began a course of physical therapy at GFG Medical, where Dr. Gaughan works, on March 28, 2012 (Gaughan 6/17/15 Report at 1), the earliest treatment note submitted by the plaintiff is dated April 18, 2012 (Physical Therapy Initial Evaluation dated April 18, 2012, attached as part of Exh. E to Kafko Decl., at 9). Dr. Gaughan further noted that an MRI of Mr. Vaneden's right knee showed "medial and lateral meniscus tears, chondromalacia and effusion," but failed to specify which MRI he was referencing. (Gaughan 6/17/15 Report at 1). As of June 2015, the plaintiff still reported neck pain, spasm, and limitation; back pain radiating to the right thigh and associated right thigh numbness; exacerbation of his previous lumbar condition; pain, limitation, and weakness at the right knee; and joint swelling. (Gaughan 6/17/15 Report at 1). As a result, he reported being limited in his ability to continuously sit, stand, walk, climb stairs, bend, and lift. (Gaughan 6/17/15 Report at 1). Dr. Gaughan also stated that Mr. Vaneden "still uses Vicodin and Flexeril PRN for pain and spasm" but did not identify who, if anyone, had recently prescribed those medications. (Gaughan 6/17/15 Report at 1).
After conducting a physical exam, Dr. Gaughan found that the plaintiff "ambulates with an antalgic gait pattern" favoring his right leg, and noted tenderness and spasm over his cervical paraspinal muscles and tenderness over the medial aspect of the right knee joint. (Gaughan 6/17/15 Report at 1). Range of motion measurements, which were "obtained visually," indicated that Mr. Vaneden had decreased mobility in his neck, trunk, and right knee as demonstrated by constricted flexion, extension, rotation, and lateral bending.
Dr. Gaughan's overall assessment was that Mr. Vaneden suffered from back pain and right thigh numbness due to radiculopathy, right knee medial and lateral meniscus tears, neck pain, and cervical disc bulges. (Gaughan 6/17/15 Report at 2). He concluded that the above-mentioned conditions were "within a reasonable degree of medical certainty [] the result of injuries which were sustained" in the March 1, 2012 accident. (Gaughan 6/17/15 Report at 2). Dr. Gaughan opined that as a result of the accident, the plaintiff had permanent limitations in the mobility of his neck, back, and right knee, and permanent partial loss of use in the same areas. (Gaughan 6/17/15 Report at 2).
Dr. Paruchuri, a radiologist, performed an MRI of the plaintiff's right knee in August 2012 due to his knee pain. (Paruchuri MRI Report at 1-2). He found "a full thickness radial tear of the posterior medial meniscal root," a "horizontal partial thickness undersurface tear of the posterior horn of the medial meniscus measuring 10 mm in length," and "a horizontal undersurface tear of the anterior horn of the lateral meniscus." (Paruchuri MRI Report at 2). Findings also included "extensive chondromalacia in the medial compartment" and large joint effusion. (Paruchuri MRI Report at 3).
Dr. Wagner, also a radiologist, conducted an MRI of Mr. Vaneden's lumbar spine in August 2012. (Wagner MRI Report at 1). He noted the plaintiff's history of back and leg pain. (Wagner MRI Report at 2). Findings included disc bulges flattening the ventral thecal sac at T11/12 and L3/4, a broad disc herniation impressing the ventral and ventrolateral thecal sac at L4/5, and a broad subligamentous disc herniation impressing the ventral epidural space at L5/S1. (Pl. 56.1, ¶ 17; Wagner MRI Report at 2).
Dr. Moros performed arthroscopic surgery on the plaintiff's right knee on March 27, 2014, and affirmed in July 2015 that he continues to provide care to Mr. Vaneden. (Pl. 56.1, ¶¶ 13, 15; Moros Report at 1-2). When Mr. Vaneden first presented to Dr. Moros on February 7, 2014, he complained of "persistent right knee pain;" the pre-operative diagnosis was a right knee medial
Dr. Moros noted that an MRI from October 2014, taken because of the plaintiff's left knee pain, showed a medial meniscal tear, previous ACL reconstruction, and "no visualization suggesting [] a recurrent tearing and degenerative tearing." (Moros Report at 2). During a physical exam on June 26, 2015, Dr. Moros found that Mr. Vaneden was experiencing mild discomfort and medial joint line tenderness of his right knee; he assessed a medial meniscus tear with synovitis and noted that the injury was "prone to degenerative changes." (Moros Report at 3). Dr. Moros concluded that "with a reasonable degree of medical certainty the right knee injury is causally connected" to the March 1, 2012 accident and that the "limitations are permanent." (Moros Report at 3).
Following the car accident in 2007, Mr. Vaneden saw Dr. Zeren for a number of chiropractic treatments due to his "severe neck and back pain." (Def. 56.1, ¶ 16; Vaneden Dep. at 15; Initial Chiropractic Evaluation by Mitchell M. Zeren, D.C., dated Aug. 30, 2007 ("Zeren Report"), attached as part of Exh. W to Kalick Decl., at 1; Concourse Chiropractic Treatment Records dated Jan. 29, 2015 ("Chiropractic Records"), attached as part of Exh. W to Kalick Decl., at 1-2). At their first meeting, Mr. Vaneden told Dr. Zeren that he was involved in a car accident on August 28, 2007, in which he struck the left side of his body and head on the car door and dashboard and briefly lost consciousness; he was transported by ambulance to Jacobi Hospital and was in and out of consciousness. (Zeren Report at 1). Upon examination, the plaintiff was experiencing numbness radiating into his shoulders and arms, and deep left knee and left shoulder pain. (Zeren Report at 1). He also told Dr. Zeren that he injured his left knee in a "sport accident" in 2005. (Zeren Report at 1). Dr. Zeren noted severe tenderness to palpation of Mr. Vaneden's spinal joints and inflammatory changes throughout the cervical spine as well as the thoracic and lumbar spine. (Zeren Report at 1). Range of motion tests revealed a constricted range of motion of the cervical and lumbar spine in terms of flexion, extension, left and right rotation, and left and right lateral flexion.
The defendants also submit a report by Keivan Shifteh, M.D., detailing an MRI examination he conducted on the plaintiff's lumbar spine in February 2011. (February 23, 2011 MRI of Paul Vaneden ("2/23/2011 MRI"), attached as part of Exh. W to Kalick Decl.). Dr. Shifteh found "mild disc bulges" at L3-L4 through L5-S1, a small annular tear at L5-S1, an edema that was "likely secondary to degenerative changes," and a "mild narrowing of the right neuroforamina at L4-L5 with questionable impingement of the right L4 nerve root." (2/23/2011 MRI Report).
These two related cases, Kenneth Satterfield v. Jesus M. Maldonado and Linden Yellow Cab, Inc., No. 14 Civ. 0627, and Paul Vaneden v. Linden Yellow Cab, Inc. and Jesus Maldonado, No. 14 Civ. 3374, were consolidated for all purposes in June 2014 after being removed at different times from New York State Supreme Court based on diversity of citizenship. (Order dated June 25, 2014; Notice of Removal; Notice of Removal ("Vaneden Removal"), Vaneden v. Linden Yellow Cab, No. 14 Civ. 3374 (S.D.N.Y. May 9, 2014)). Subsequently, I issued an order allowing the Linden defendants to file a counterclaim against Kenneth Satterfield and an amended third party complaint against Elma Satterfield, which they did in September 2014. (Memorandum and Order dated Sept. 19, 2014; Counterclaim Against Kenneth Satterfield; Amended Third Party Complaint). Mr. Vaneden then filed an amended complaint against the Linden defendants, Elma Satterfield, and Kenneth Satterfield in January 2015. (Am. Compl.).
The Linden defendants now move for summary judgment against Mr. Vaneden on the basis that he failed to sustain a serious injury. (Notice of Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56 at 1-2). Mr. Satterfield cross moves against Mr. Vaneden on the same grounds, seeks dismissal of his complaint with prejudice (Notice of Cross-Motion at 1-2), and incorporates into his cross-motion the Linden defendants' submissions in support of their motion in their entirety
Under Rule 56 of the Federal Rules of Civil Procedure, a court will grant summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a); Utica Mutual Insurance Co. v. Munich Reinsurance America, Inc., 594 Fed.Appx. 700, 701-02 (2d Cir.2014). The moving party bears the initial burden of identifying "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party then must cite specific parts of the record, such as depositions, documents, affidavits or declarations, and admissions, to demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(c); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Only facts that could affect the out-come of the suit under the governing substantive law are deemed "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir.2001). In addition, a party may object if the material supporting or disputing a fact cannot be presented in an admissible form. See Fed. R.Civ.P. 56(c)(2); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001) ("Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial."). Accordingly, in deciding a summary judgment motion, a court has "broad discretion in choosing whether to admit evidence" and "only admissible evidence need be considered." Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir.2009) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 65-66 (2d Cir.1997)). Where the non-moving party fails to make "a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment must be granted. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
In assessing the record to determine whether there is a genuine issue of material fact for trial, the court must view all facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."); accord Holcomb v. Iona College, 521 F.3d 130, 132 (2d Cir.2008). Nonetheless, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," and may grant summary judgment where the non-movant's evidence is "merely colorable" or not significantly probative. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). In opposing a motion for summary judgment, a party "may not rely on mere speculation or conjecture as to the true nature of the facts", as "conclusory allegations or denials... cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (alteration in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995)).
The defendants' motion presents
N.Y. Ins. Law § 5104(a). Serious injury, in turn, is defined in relevant part as:
N.Y. Ins. Law § 5102(d).
Where a claim involves non-economic loss, as here, a defendant moving for summary judgment has the initial burden of putting forward evidence showing that the plaintiff has not sustained a serious injury within the meaning of the No-Fault Law. Evans, 978 F.Supp.2d at 162-63. "The defendant may satisfy this initial burden with unsworn reports by the plaintiff's physicians or with sworn affidavits or affirmations by the defendant's own retained physicians." Id. at 163 (quoting Thomas, 2010 WL 785999, at *7). If the defendant makes such a prima facie showing,
To properly demonstrate a "serious injury," a plaintiff must provide "objective proof of [his] injury," as "subjective complaints alone are not sufficient." Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d at 868, 774 N.E.2d 1197. However, in Pommells v. Perez, the New York Court of Appeals held that even where a plaintiff offers objective medical proof of a serious injury, "when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition — summary dismissal of the complaint may be appropriate." 4 N.Y.3d 566, 572, 797 N.Y.S.2d 380, 383, 830 N.E.2d 278 (2005).
Mr. Vaneden argues that he sustained injuries causally related to the subject accident that pass the threshold test, as he suffered both a permanent consequential limitation of use of a body organ or member, and a significant limitation of use of a body function or system. (Pl. Opp. Memo. at 8-13).
The defendants have made a prima facie showing that the plaintiff did not sustain a serious injury to his back, neck, and right knee within the meaning of the No-Fault Law. See Jimenez, 2012 WL 279432, at *7-8 (collecting cases); Shaw, 8 A.D.3d at 102-03, 779 N.Y.S.2d at 10. The defendants' expert orthopedic surgeon, Dr. Grelsamer, examined Mr. Vaneden and reviewed his medical records, and determined that the plaintiff did not sustain a meniscal tear as a result of the March 1, 2012 accident and did not demonstrate acute distress while standing or walking. (Grelsamer Report at 1-5). The defendants' expert radiologist, Dr. Coyne, evaluated the plaintiff's MRIs and x-rays, and found that his knees demonstrated advanced degenerative changes, his cervical and lumbosacral spine showed degenerative changes, and all of the degenerative changes of his spine and knees were chronic, longstanding, pre-existent, and not causally related to the subject accident. (Coyne Report at 3-4). The defendants also submitted medical records from chiropractic treatment Mr. Vaneden received in 2007, which labeled him "totally disabled" and found his range of motion to be markedly constricted. (Zeren Report at 1-2). Lastly, the defendants proffered an MRI of the plaintiff's lumbar spine pre-dating the accident that also demonstrated degenerative changes. (2/23/2011 MRI Report).
"To prove permanence, `it is not necessary to prove a total loss of the affected function or system, but it is still necessary to submit proof that it operates in some limited way, or operates only with pain.'" Baytsayeva v. Shapiro, 868 F.Supp.2d 6, 21 (E.D.N.Y.2012) (quoting Booker v. Miller, 258 A.D.2d 783, 784, 685 N.Y.S.2d 837, 837 (3d Dep't 1999)); see also Barth v. Harris, No. 00 Civ. 1658, 2001 WL 736802, at *11 (S.D.N.Y. June 25, 2001) (injury causing permanent but intermittent pain may qualify if "more than minor or involv[ing] at least some restriction of motion" or actual limitation of use) (collecting cases). A plaintiff must also "produce competent medical evidence that [his] injuries are permanent." Ventra v. United States, 121 F.Supp.2d 326, 333 (S.D.N.Y.2000). The absence of a recent medical examination purporting to substantiate "that portion of a plaintiff's serious injury claim which alleges some sort of
Mr. Vaneden alleges that his neck, back, and right knee impairments constitute a "permanent disability" as required to establish a "serious injury." (Pl. Opp. Memo. at 11). In furtherance of this argument, the plaintiff cites Dr. Gaughan's findings from a June 2015 physical exam that Mr. Vaneden continued to exhibit an antalgic gait, right knee tenderness, decreased sensibility to vibration along the right foot, and a reduced range of motion in his neck, back, and right knee. (Pl. Opp. Memo. at 9; Gaughan 6/17/15 Report at 1-2). He also relies on Dr. Moros' opinion that the limitations related to his right knee meniscus tear are permanent. (Pl. Opp. Memo. at 9-10; Moros Report at 2-3). Additionally, in his deposition, Mr. Vaneden complained of intermittent "stabbing pain" in his right knee, and neck and lower back pain, causing him to continue taking Vicodin. The "limitations" he experiences include an inability to run, play basketball, or walk for long periods of time, all as a result of the injuries he sustained in the March 1, 2012 accident. (Vaneden Dep. at 76-77, 79-80, 86-87).
Of course, "[p]ermanent injuries already in existence at the time of the car accident will not qualify" as serious injuries. Jones v. United States, 408 F.Supp.2d 107, 117 (E.D.N.Y.2006) (collecting cases). In Mr. Vaneden's case, records demonstrate pre-existing conditions affecting his neck and spine. In particular, notes from his 2006 treatment with Dr. Zeren discuss a constricted range of motion of his cervical and lumbar spine, tenderness, and inflammatory changes throughout the cervical, thoracic, and lumbar spine. (Zeren Report at 1-2). Mr. Vaneden was diagnosed with, among other things, cervical and lumbar spine derangement, traumatic vertebral subluxation complex, and a closed head injury, and was labeled "totally disabled." (Zeren Report at 2). Additionally, an MRI of his lumbar spine from February 2011 showed mild disc bulges at various vertebral segments and degenerative disc desiccation. (2/23/2011 MRI Report).
The plaintiff has not provided any expert report that explains why these pre-existing conditions are not the cause of his current injuries. Cf. Wadford v. Gruz, 35 A.D.3d 258, 259, 826 N.Y.S.2d 57, 59 (1st Dep't 2006) (plaintiff's expert noted prior accident and documented differences between MRI taken after earlier accident and after subject accident before concluding that injuries resulted from the latter); see also Hayes v. Johnston, 17 A.D.3d 853, 853-54, 794 N.Y.S.2d 462, 463 (3d Dep't 2005) (granting summary judgment where plaintiff failed to present objective evidence to counter testimony of defendant's expert that plaintiff's degenerative disc disease and mild disc bulging predated the accident). Moreover, Mr. Vaneden did not provide meaningful evidence addressing Dr. Coyne's findings that July 2012 and August 2012 MRIs of the plaintiff's cervical and lumbosacral spine showed "degenerative disc and facet joint changes" and that all such changes were "long-standing... and not causally related" to the March 1, 2012 accident. (Coyne Report at 3-4). Dr. Gaughan's statement that the plaintiff's back pain was "the result of injuries" sustained in the accident (Gaughan 6/17/15 Report at 2) is unsupported by objective testing. See Arroyo v. Morris, 85 A.D.3d 679, 680, 926 N.Y.S.2d 488, 489-90 (1st Dep't 2011) (experts' failure to reference either plaintiff's degenerative or chronic condition made their opinion on causation "speculative"); Rogers v. Chiarelli, 10 A.D.3d 355, 356, 781 N.Y.S.2d 368, 368-69 (2d Dep't 2004) (summary judgment appropriate
As for the plaintiff's other conditions, the defendants argue that the gap in his treatment is fatal to his serious injury claim. (Memorandum of Law in Support of the Linden Defendants' Motion for Summary Judgment against Paul Vaneden Pursuant to FRCP 56 at 22; Linden Reply at 8-9). "While a cessation of treatment is not dispositive ... a plaintiff who terminates therapeutic measures following the accident ... must offer some reasonable explanation for having done so." Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d at 385, 830 N.E.2d 278. Mr. Vaneden contends that discontinuation of benefits constitutes such an explanation. (Pl. Opp. Memo. at 13-14). This is certainly true, see Peluso v. Janice Taxi Co., 77 A.D.3d 491, 492, 909 N.Y.S.2d 699, 700 (1st Dep't 2010); Wadford, 35 A.D.3d at 259, 826 N.Y.S.2d at 59; however, even in the case that Mr. Vaneden cites in support of this proposition, the plaintiff "offer[ed] proof of the termination of her insurance benefits" in addition to her testimony that she could not afford to pay for treatment "out of pocket." Peluso, 77 A.D.3d at 492, 909 N.Y.S.2d at 700.
In the instant case, not only has Mr. Vaneden not provided any proof that he was "treated until No-Fault would not pay for further therapy and finally had surgery after finding a doctor who would accept Medicaid," he does not even provide a date on which his no-fault coverage ended, state that his financial situation prevented further treatment, or describe in any detail his search for a surgeon who accepted alternative insurance. (Pl. Opp. Memo. at 10). Consequently, the plaintiff has not sufficiently explained the sixteen-month gap in treatment between October 2012, when the record indicates he last saw Dr. Gaughan for physical therapy relating to his low back, neck, and right knee, and February 2014, when he first consulted with Dr. Moros in advance of knee surgery. (Gaughan 10/18/12 Report at 4; Moros Report at 4). As the defendants highlight, the record also indicates an unexplained gap in treatment between May 2014 and June 2015, when the plaintiff obtained affirmed reports from Dr. Gaughan and Dr. Moros in order to oppose the defendants' motion. (Linden Reply at 8-9). Dr. Moros' report from June 2015 states that Mr. Vaneden received a corticosteroid injection in his right knee on May 6, 2014 (Moros Report at 2); there is no proof of subsequent medical treatment for that knee and Mr. Vaneden testified that he has not undertaken any physical therapy in 2015 (Pl.56.1, ¶ 9).
Additionally, although both Dr. Moros and Dr. Gaughan opined that the right knee limitations resulting from the March 1, 2012 accident are "permanent," there are no recent objective examinations supporting that conclusion. See Jones, 408 F.Supp.2d at 117 (a claim of permanent limitation "must be supported by medical records, and not based solely on plaintiff's testimony and subjective descriptions of pain"). In fact, Dr. Coyne found that an October 2014 MRI of Mr. Vaneden's right knee showed degenerative changes, no evidence of a meniscus traumatic tear, and resorbed joint effusion; he also concluded that none of the MRIs or x-rays he reviewed showed any "osseous or soft tissue abnormality" related to the accident. (Coyne Report at 3-4). In light of the plaintiff's unproven and unexplained gaps in treatment and his failure to bolster his claim of permanent injuries with objective proof, the plaintiff has cannot establish a
A "significant limitation of use of a body function does not require permanence, but instead requires a fact finding on the issue of whether the dysfunction is important enough to reach the level of significance." Jones, 408 F.Supp.2d at 119 (quoting Miller v. Miller, 100 A.D.2d 577, 578, 473 N.Y.S.2d 513, 514 (2d Dep't 1984)). The New York Court of Appeals has held that a "minor, mild or slight limitation of use" of a body function or system does not constitute a "significant limitation." Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 573, 441 N.E.2d 1088; accord Baytsayeva, 868 F.Supp.2d at 22. As with permanent consequential limitations, claims of serious injuries based on the significance of a plaintiff's limitation must be supported by objectively measured and credible medical evidence. Ventra, 121 F.Supp.2d at 333-34; Jones, 408 F.Supp.2d at 119. "A plaintiff's description of his pain and suffering, standing alone without other objective indicia, cannot support a claim of significant limitation." Jones, 408 F.Supp.2d at 119. Additionally, a plaintiff must prove a significant limitation "in both degree and duration." Gualtieri v. Farina, 283 F.Supp.2d 917, 925 (S.D.N.Y.2003); accord Partlow v. Meehan, 155 A.D.2d 647, 648, 548 N.Y.S.2d 239, 240 (2d Dep't 1989).
In Toure, the New York Court of Appeals noted that "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used" to prove the extent of a physical limitation and "substantiate a claim of serious injury." 98 N.Y.2d at 350, 746 N.Y.S.2d at 868, 774 N.E.2d 1197; accord Baytsayeva, 868 F.Supp.2d at 23. A doctor's "qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system." Toure, 98 N.Y.2d at 350-51, 746 N.Y.S.2d at 868, 774 N.E.2d 1197; accord Carter v. Atlantic Greyhound Lines of VA, Inc., No. 02 CV 0393, 2005 WL 1692639, at *6 (E.D.N.Y. July 5, 2005). A significant limitation is often demonstrated through an injury's impact on a plaintiff's range of motion. Jones, 408 F.Supp.2d at 121. Whether a limitation of use qualifies as significant "involves a comparative determination... based on the normal function, purpose and use of the body part." Toure, 98 N.Y.2d at 353, 746 N.Y.S.2d at 869, 774 N.E.2d 1197 (quoting Dufel, 84 N.Y.2d at 798, 622 N.Y.S.2d at 902, 647 N.E.2d 105). Additionally, "[w]hile there is no set percentage for determining whether a limitation in range of motion is sufficient to establish `serious injury,' the cases have generally found that a limitation of twenty percent or more is significant for summary judgment purposes." Hodder v. United States, 328 F.Supp.2d 335, 356 (E.D.N.Y. 2004) (collecting cases).
Mr. Vaneden argues his range of motion, which was constricted "immediately following the accident" and remains constricted, is "clear evidence" that he sustained a significant limitation under the No-Fault Law. (Pl. Opp. Memo. at 13). Although Dr. Gaughan's reports pre-dating June 2015 do indicate that the plaintiff experienced a restricted range of motion in the months following the March 1, 2012 accident, Dr. Gaughan fails to ascribe any limitations to his decreased mobility. (Gaughan 6/21/12 Report at 7-8; Gaughan 7/26/12 Report at 5-6; Gaughan 10/18/12 Report at 34). As for the plaintiff's current range of motion, testing by Dr. Gaughan and the defendants' expert Dr. Grelsamer confirm that he has experienced a
Moreover, there is no objective evidence demonstrating constricted mobility. This is particularly problematic because, as the court noted in Jones, diagnoses regarding range of motion are often based on subjective tests "in which the plaintiff had some or total control over his range of motion." 408 F.Supp.2d at 121-22 (discrediting range of motion testimony where plaintiff had control over his range of motion and MRIs did not show further aggravation of degenerations and injuries); cf. Baytsayeva, 868 F.Supp.2d at 23 (denying summary judgment where plaintiff submitted three sworn affidavits diagnosing her with conditions related to traumatic brain injury and near-constant and severe pain throughout her body, MRIs showing disc herniation and bulging, and recent range of motion testing showing significant limitations). Because "New York courts have consistently held" that a finding of loss of range of motion "is insufficient to support an objective finding of serious injury" without additional supportive evidence, Hodder, 328 F.Supp.2d at 349 (quoting Gillick v. Knightes, 279 A.D.2d 752, 752, 719 N.Y.S.2d 335, 336 (3d Dep't 2001)), Mr. Vaneden's claim of a serious injury based on constricted range of motion fails.
The plaintiff also relies on his continued use of a knee brace, antalgic gait pattern, and tenderness over his cervical paraspinal muscles and right knee joint as constituting a significant limitation. (Pl. Opp. Memo. at 12-13). However, the plaintiff's own expert Dr. Moros found in a June 2015 physical exam that he was only experiencing "mild discomfort" in the right knee (Moros Report at 3) and, as discussed above, mild limitations are classified as insignificant under the No-Fault Law, see Jimenez, 2012 WL 279432, at *9; Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 573, 441 N.E.2d 1088. As for Mr. Vaneden's neck and back pain, the same issues that prevent him from establishing a permanent limitation — causation and pre-existent injuries from his 2007 car accident — also bar him from claiming a significant one. Perhaps most pertinently, the limitations described by Mr. Vaneden do not on their face rise to the level of "significant." The plaintiff argues that he can no longer run, play basketball, enjoy dancing, or walk too long. (Pl. Opp. Memo. at 12). However, inability to fully participate in recreational activities does not qualify as a significant limitation. See Cooper v. Dunn, No. 99 CV 6903, 2001 WL 138864, at *11 (E.D.N.Y. Jan. 2, 2001). Furthermore, Mr. Vaneden's subjective description of relatively mild limitations, unsupported by objective medical evidence, is insufficient to raise an issue of fact. See Thompson v. Abbasi, 15 A.D.3d 95, 101, 788 N.Y.S.2d 48, 53 (1st Dep't 2005); Sellitto v. Casey, 268 A.D.2d 753, 755, 702 N.Y.S.2d 177, 180 (3d Dep't 2000) (psychologist's description of plaintiff's limitations did not "provide that objectively measure quantum of evidence necessary to satisfy" significant limitation category); cf. Toure, 98 N.Y.2d at 353, 746 N.Y.S.2d at 870, 774 N.E.2d 1197 (limitations
The plaintiff has not submitted evidence demonstrating that he suffered a "severe injury" under either the permanent consequential limitation of use or significant limitation of use categories of New York Insurance Law § 5102(d), and there is accordingly no genuine issue of material fact to preclude summary judgment in favor of the defendants.
For the reasons set forth above, the Linden defendants' motion for summary judgment (Dkt. No. 53) and Mr. Satterfield's cross motion (Dkt. No. 62) are granted. Counsel shall submit a joint pretrial order with respect to Mr. Satterfield's claims by September 30, 2015.
SO ORDERED.
In a tort case, the significant contacts "are, almost exclusively, the parties' domiciles and the locus of the tort." Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 95, 480 N.E.2d 679 (1985). "Where the parties are domiciled in different states, the locus of the tort will almost always be determinative in cases involving conduct-regulating laws." Krock v. Lipsay, 97 F.3d 640, 646 (2d Cir.1996); accord Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 311, 644 N.E.2d 1001 (1994). Negligence law regulates conduct. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 230 F.Supp.2d 376, 390 (S.D.N.Y.2002). Here, Mr. Vaneden is domiciled in New York, the Linden defendants are domiciled in New Jersey, and Mr. Satterfield is presently a resident of Ohio; the accident in question occurred in New York. (Vaneden Removal, ¶ 3; Am. Compl., ¶¶ 2-4). Consequently, New York law governs the claims in this case.