JUDITH C. McCARTHY, Magistrate Judge.
Plaintiff Clemencia Gil ("Plaintiff") commenced this diversity action against Defendant Western Express, Inc. ("Defendant Western Express") and Defendant Robert E. Smith ("Defendant Smith") (jointly "Defendants") to recover for personal injuries allegedly sustained as a result of a motor vehicle accident with a tractor-trailer owned and operated by Defendants. Before the Court is Defendants' Motion for Summary Judgment (the "Motion").
The following facts are gathered from Defendants' statement filed pursuant to Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1"), (Docket No. 35), Defendant's supporting affidavits and exhibits, and the pleadings submitted by the parties in support of their contentions. The facts are construed in the light most favorable to Plaintiff as the party opposing summary judgment.
At approximately 9:00 a.m. on September 11, 2014, Plaintiff was driving her 2015 Toyota Corolla southbound across the Tappan Zee Bridge. (Gil Tr.
After the Accident, Plaintiff and Defendant Smith pulled their vehicles to the side of the road. (Gil Tr. at 33-34). Shortly thereafter, Plaintiff's husband arrived at the scene and drove her to St. John's Hospital. (Id. at 46). There, she complained of neck, back and stomach pains. (Pl. Ex. 1 at 5). The emergency room physician administered a CT Scan of Plaintiff's cervical spine and abdomen. (Id. at 8-9). After the physician reviewed the results, Plaintiff testified that she was informed she had "no injury." (Gil Tr. at 53-54; Pl. Ex. 1 at 9). Plaintiff then left the hospital and, as directed, took Tylenol as needed to alleviate her pain. (Gil Tr. at 56).
On September 15, 2014, Plaintiff sought medical treatment at the Grand Concourse Clinic (the "Clinic"), where she made initial complaints of: (i) back, neck, knee and left-shoulder pains; (ii) headaches; and (iii) feeling tired, weak and dizzy. (Pl. Ex. 2 at 7; Gil Tr. at 59). Dr. Mitchell Zeren ("Dr. Zeren"), a chiropractor at the Clinic, conducted a physical examination of Plaintiff. (Pl. Ex. 2 at 7-8).
(Id. at 7-8). Ultimately, Dr. Zeren concluded that Plaintiff "suffered from derangement of the cervical and lumbar spines with disc displacement and radiculopathy which has caused pain, and significant and meaningful restrictions in motion to the involved body parts; as well as posttraumatic headaches. . . ." (Id. at 3). Based upon his examination, Dr. Zeren opined that these injuries were causally related to the Accident. (Id. at 4).
On October 22, 2014, Dr. Aric Hausknecht ("Dr. Hausknecht") conducted a neurological examination of Plaintiff and reviewed, inter alia, an MRI of Plaintiff's cervical spine taken on October 1, 2014. (Pl. Ex. 3 at 4). His findings revealed that Plaintiff suffered from disc pathology at "multiple levels in the cervical and thoracic region" and he recommended that "interventional pain management and/or spinal surgery should be considered." (Id. at 5). Dr. Hausknecht also conducted a nerve conduction velocity and electromyography test ("EMG"), which revealed evidence of radiculopathy. (Id. at 6). Dr. Hausknecht concluded that Plaintiff's condition was causally related to the Accident. (Id. at 5).
Plaintiff also saw her primary care physician, Dr. Maria Diaz ("Dr. Diaz"), sometime in October 2014. (Gil. Tr. at 62). Plaintiff testified that she explained to Dr. Diaz that she had been in an accident, and so Dr. Diaz prescribed Naprosyn, which Plaintiff obtained and refilled "two or three" times. (Id. at 62-64). However, Dr. Diaz did not administer any other care for injuries allegedly sustained in the Accident because she was aware that Plaintiff was seeking treatment at the Clinic. (Id. at 64).
After visiting Dr. Diaz, Plaintiff returned to Dr. Zeren for a follow-up chiropractic examination on February 28, 2015. (Pl. Ex. 2 at 5). Dr. Zeren noted that Plaintiff was "not doing well" and "remain[ed] extremely symptomatic." (Id.). He ultimately diagnosed Plaintiff with "cervical derangement with C5-6, C6-7 disc herniation and C3-4, C4-5 disc bulging . . . thoracic derangement with T7-8 and T8-9 disc herniations . . . traumatic myalgia and myofasciitis . . . [and] traumatic injury to the left shoulder." (Id. at 6). Dr. Zeren also re-tested Plaintiff's range of motion in her cervical spine and lumbar spine, which again fell short of the normal average range of motion:
Id. at 5-6). As in his initial report, Dr. Zeren concluded that these injuries were causally related to the Accident. (Id. at 6).
Plaintiff subsequently received treatment from Dr. Orsuville Cabatu ("Dr. Cabatu") at Electrodiagnostic and Physical Medicine on March 27, 2015. (Pl. Ex. 4 at 2). Upon his physical examination of Plaintiff, Dr. Cabatu observed spasms in the cervical and lumbar paraspinal muscles, and tenderness in the left trapezius, left scapula and lumbar paraspinal muscles. (Id. at 3-4). He also conducted cervical-spine and left-shoulder range-of-motion tests, which yielded the following results:
(Id. at 4-5). Dr. Cabatu diagnosed Plaintiff with sustained left cervical radiculopathy; disc herniation with impingement; disc bulging with impingement; cervical, lumbar and left-knee strains; and tension headaches. (Id. at 5). At the close of his examination, Dr. Cabatu prescribed Plaintiff physical therapy for her back, neck and shoulders two or three times per week.
Plaintiff visited Dr. Cabatu for a follow-up examination on December 22, 2015, at which time Dr. Cabatu opined that Plaintiff "remained symptomatic." (Pl. Ex. 4 at 6-7). He also retested Plaintiff's range of motion in her cervical spine and left shoulder:
(Id. at 7). At another follow-up examination on December 13, 2016, Dr. Cabatu again tested Plaintiff's range of motion in her cervical spine and left shoulder, and also tested Plaintiff's range of motion in her left knee:
(Id. at 8, 10). With respect to each of Dr. Cabatu's findings at the initial, December 22, 2015, and December 13, 2016 examinations, he concluded, to a reasonable degree of medical certainty, that the "[A]ccident . . . was the competent producing cause of [Plaintiff's] injuries and symptoms." (Id. at 9).
Plaintiff was also examined by Dr. Anson M. Moise ("Dr. Moise"), a pain management doctor at Electro diagnostic and Physical Medicine, on April 22, 2016. (Pl. Ex. 8). Dr. Moise diagnosed Plaintiff with cervical radiculopathy and, thus, administered an interlaminar cervical epidural steroid injection. (Id.). Dr. Moise reported that Plaintiff's cervical radiculopathy remained after the procedure was complete. (Id.).
Plaintiff testified that, as a result of the Accident, she could not work for a period of approximately three weeks. (Gil Tr. at 99-100, 103). After returning to work, Plaintiff noted persisting limitations as a result of the Accident, including: (i) difficulty sleeping due to back pain; (ii) inability to drive long distances; (iii) inability to lift heavy items, including toys she uses for her job; (iv) inability to walk up stairs; and (v) difficulty completing routine household chores. (Id. at 105-107).
On May 27, 2016, Plaintiff appeared for an independent orthopedic examination by Dr. Sean Lager ("Dr. Lager") to address her complaints of neck, back, left-shoulder and left-knee pains. (Defs. Ex.
Finally, Dr. Lager found that the results of Plaintiff's lumbar MRI taken on April 24, 2015, which showed left lateral herniation with impingement and a bulging disc, did not correlate with his finding that Plaintiff is "neurologically intact with no objective evidence of lumbar radiculopathy." (Defs. Ex. 11 at 10). Ultimately, Dr. Lager concluded that there were no objective findings to support complaints of orthopedic disability, and that there was no permanent injury. (Id.). Based upon his examination, Dr. Lager diagnosed Plaintiff with resolved cervical and lumbar strains, resolved left-knee strain and resolved left-shoulder strain. (Id. at 9).
On June 26, 2016, Plaintiff appeared for an independent neurological examination by Dr. Rene Elkin ("Dr. Elkin"). (Defs. Ex. 12). Dr. Elkin's examination of Plaintiff's neck revealed "full range of motion." (Id. at 16). While Plaintiff reported pain in her neck, Dr. Elkin found "no pain to palpation of the cervical spine or cervical musculature . . . [and] no palpable cervical muscle spasm." (Id.). The examination of Plaintiff's lower back "revealed full range of motion." (Id.). While Plaintiff described pain in the lumbar musculature, Dr. Elkin found "no palpable lumbar muscle spasm." (Id.). Lastly, Dr. Elkin's examination of Plaintiff's shoulders and knees "revealed full range of motion." (Id.). Ultimately, Dr. Elkin found "no objective findings on the neurological physical examination for any structural neurological injury attributable to the [A]ccident." (Id. at 16-17). She also found no evidence of neurological permanency or disability. (Id.).
Finally, Dr. Marc Katzman ("Dr. Katzman") performed an independent radiological interpretation of: (i) the MRI of Plaintiff's left shoulder taken on August 14, 2014; (ii) the X-ray of Plaintiff's left shoulder taken on March 30, 2015; (iii) the X-ray study of Plaintiff's left shoulder from April 24, 2015; and (iv) the MRI of Plaintiff's lumbar spine taken on April 24, 2015. (Defs. Ex. 13). Regarding the left-shoulder MRI taken on August 14, 2014, Dr. Katzman concluded that it "reveals no evidence of recent post-traumatic injury to the left shoulder joint," rather only "mild chronic degeneration of the rotator cuff in the setting of chronic internal impingement." (Id. at 8). He further reported that "all internal derangements of the left shoulder appear chronic, degenerative, and pre-existing. . . ." (Id.). After reviewing the left-shoulder X-ray from March 30, 2015, Dr. Katzman opined that it "reveals no evidence of recent post-traumatic injury." (Id.). Regarding the left-shoulder X-ray from April 24, 2015, Dr. Katzman concluded that it "reveals no evidence of recent posttraumatic injury . . . [and that] there is pre-existing chronic degenerative arthropathy of the acromioclavicular joint." (Id. at 10). Lastly, with respect to the MRI of Plaintiff's lumbar spine taken on April 24, 2015, Dr. Katzman concluded that he saw no evidence of recent traumatic injury, but rather identified "multilevel degenerative disc disease of the lumbar spine" that is "clearly chronic." (Id. at 11). He noted that "the disc bulges at L1-2, L2-3, L3-4, L-5 and L5-S1 are by definition degenerative and non-traumatic." (Id.).
In 2002, Plaintiff was involved in a motor vehicle accident that resulted in back injuries. (Gil Tr. at 81-82). After that accident, Plaintiff was treated at the St. John's Hospital emergency room, received follow-up care at a clinic for approximately three months and remained under the care of her physician for approximately one year. (Id. at 85-88, 111-112). Additionally, sometime in 2003 or 2004, Plaintiff had breast reduction surgery in the Dominican Republic to alleviate back pains. (Id. at 91-92).
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of demonstrating that it is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to a material fact "exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citation omitted); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). "A fact is material if it might affect the outcome of the suit under the governing law." Casalino v. N.Y. State Catholic Health Plan, Inc., No. 09 Civ. 2583 (LAP), 2012 WL 1079943, at *6 (S.D.N.Y. Mar. 30, 2012) (citation omitted).
In reviewing a motion for summary judgment, the Court "must draw all reasonable inferences in favor of the [non-moving] party" and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000) (citations omitted). That said, the Court may not weight the evidence or determine the truth of the matter, but rather conducts "the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250.
The moving party bears the initial burden of "demonstrating the absence of a genuine issue of material fact." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at 323). If the moving party meets this initial burden, the burden then shifts to the non-moving party to "present evidence sufficient to satisfy every element of the claim." Id. "The non-moving party `is required to go beyond the pleadings' and `designate specific facts showing that there is a genuine issue for trial,'" id. (citing Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249-50), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party fails to establish the existence of an essential element of the case on which it bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Under New York law, an individual may not bring a lawsuit to recover non-economic damages arising out of negligent use of a properly-insured vehicle "except in the case of a serious injury." N.Y. Ins. Law § 5104(a). An injury is "serious" if it falls into one of nine statutorily-defined categories:
N.Y. Ins. Law § 5102(d).
The purpose of New York's No-Fault Insurance Law is "`to weed out frivolous claims and limit recovery to significant injuries.'" Bewry v. Colonial Freight Sys., No. 01 Civ. 5634 (JCF), 2002 WL 31834434, at *2 (S.D.N.Y. Dec. 17, 2002) (quoting Dufel v. Green, 84 N.Y.2d 795, 798 (1995)). For this reason, whether the facts of a case would support a jury's finding that a plaintiff has suffered a serious injury is a "threshold question" for the court to decide. See Yong Qin Luo v. Mikel, 625 F.3d 772, 776-77 (2d Cir. 2010). A defendant moving for summary judgment carries the initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury. See id. at 777. If the defendant carries his burden, the plaintiff must then demonstrate that there is sufficient admissible evidence that she did in fact sustain such an injury. See id. Subjective complaints of pain alone cannot defeat a defendant's summary judgment motion — the plaintiff must offer objective medical evidence of a serious injury. See id.; see also Munoz v. Hollingsworth, 795 N.Y.S.2d 20, 21 (1st Dep't 2005). This evidence may be in the form of sworn affidavits, reports by physicians, or sworn medical test records, including MRI and X-ray results. See Yonq Qin Luo, 625 F.3d at 777; Garner v. Tong, 811 N.Y.S.2d 400, 400 (1st Dep't 2006); see also Fountain v. Sullivan, 690 N.Y.S.2d 341, 342 (3d Dep't 1999).
"To establish a claim under the permanent consequential limitation or significant limitation of use categories, the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system." Clark v. Basco, 83 A.D.3d 1136, 1139 (3d Dep't 2011) (internal quotations omitted). "[T]o raise a triable issue of fact, plaintiff['s] claim that [her] range of motion is limited must be sustained by objective medical findings that are `based on a recent examination.'" Bent v. Jackson, 15 A.D.3d 46, 48 (2005) (quoting Grossman v. Wright, 268 A.D.2d 79, 84 (2d Dep't 2000)). "[B]ulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury." DeJesus v. Paulino, 61 A.D.3d 605, 608 (1st Dep't 2009) (citing Pommells v. Perez, 4 N.Y.3d 566, 574 (2005); Toulson v. Young Han Pae, 13 A.D.3d 317, 319 (2004)).
Furthermore, to prove that she suffered a significant limitation, a plaintiff must demonstrate "that she suffered from `something more than a . . . minor, mild or slight limitation of use.'" Ventra v. United States, 121 F.Supp.2d 326, 333 (S.D.N.Y. 2000) (alteration in original) (quoting Licari v. Elliott, 57 N.Y.2d 230, 236 (1982)). The limitation must be significant in degree and duration, see Gualtieri v. Farina, 283 F.Supp.2d 917, 925 (S.D.N.Y. 2003), and "[t]he significance of the limitation must be supported by credible medical evidence and must be objectively measured and quantified," Ventra, 121 F.Supp.2d at 333-34.
"Tests such as MRIs, x-rays, and CT-scans are objective and credible medical evidence of a serious injury because they do not rely on the patient's complaints of pain." DeJesus v. Rafael, No. 00 Civ. 5137 (SWK), 2003 WL 21305358, at *2 (S.D.N.Y. June 5, 2003) (citations omitted). Other objective evidence, such as straight-leg-raise tests, and observations of spasms by a treating physician, can also be sufficient to withstand a summary-judgment motion. See id.; see also Adetunji v. U-Haul Co. of Wis., Inc., 250 A.D.2d 483, 483 (1st Dep't 1998). "[A]n expert'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." Hodder v. United States, 328 F.Supp.2d 335, 349 (E.D.N.Y. 2004) (quotation omitted).
To demonstrate a serious injury under the 90/180 category, a plaintiff must "submit competent medical evidence to support her claim that she was unable to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the accident, as a result of the subject accident." Escoto v. United States, 848 F.Supp.2d 315, 330 (E.D.N.Y. 2012) (citing, inter alia, Kearse v. N.Y.C. Transit Auth., 16 A.D.3d 45, 52 (2d Dep't 2005)); see also Sainte-Aime v. Ho, 274 A.D.2d 569, 570 (2d Dep't 2000). To sustain a claim in this category, a "plaintiff must prove that she was `curtailed from performing [her] usual activities to a great extent rather than some slight curtailment.'" Gualtieri v. Farina, 283 F.Supp.2d 917, 924-25 (S.D.N.Y. 2003) (alteration in original) (quoting Licari, 57 N.Y.2d at 236).
A "plaintiff's allegations that her injuries [fall] within the 90/180 category must be substantiated by objective medical proof[.]" Escoto, 848 F.Supp.2d at 330; accord Gualtieri, 283 F.Supp.2d at 925. Self-serving statements by a plaintiff are insufficient to establish a serious injury under the 90/180 category. See Gualtieri, 283 F.Supp.2d at 925; see also Escoto, 848 F.Supp.2d at 330.
In support of the Motion, Defendants submit three expert reports to establish a prima facie case that Plaintiff has not suffered a serious injury as defined by New York Insurance Law § 5102(d). See generally supra Section I.B. First, they attach the results of an independent orthopedic examination performed by Dr. Lager to address Plaintiff's complaints of neck pain, back pain, left shoulder pain and left knee pain. (Defs. Ex. 11). Dr. Lager's examination revealed that there were no objective findings to support complaints of orthopedic disability, and that there was no evidence of a permanent injury. (Id. at 10). Based upon his examination, Dr. Lager diagnosed Plaintiff with resolved cervical and lumbar strains, resolved left knee strain and resolved left shoulder strain. (Id. at 9). Second, Defendants include the results from Dr. Elkin's independent neurological examination. (Defs. Ex. 12). Dr. Elkin found "no objective findings on the neurological physical examination for any structural neurological injury attributable to the [A]ccident." (Id. at 18-19). She also found no evidence of neurological permanency or disability. (Id. at 18-19). Third, Defendants submit Dr. Katzman's independent radiological interpretations. (Defs. Ex. 13). After reviewing the results of Plaintiff's various MRIs and X-rays, Dr. Katzman concluded that any injuries observed were the result of chronic and degenerative issues, and not caused by the Accident. (Id. at 8; see also supra Section I.B).
The Court finds that the opinions set forth in these expert reports are sufficient to establish a prima facie case that Plaintiff's injuries do not fall within the no-fault statute's definition of "serious injury." See Brusso v. Imbeault, 699 F.Supp.2d 567, 576-77 (W.D.N.Y. Mar. 16, 2010) (stating physician's independent medical examination report is sufficient to satisfy defendant's initial burden to show there was no serious injury within meaning of statute). Specifically, the independent medical examinations by Dr. Lager, Dr. Elkin and Dr. Katzman affirm, with competent medical evidence, that Plaintiff did not suffer a permanent consequential limitation or a significant limitation as a result of the Accident. See Tenzen v. Hirschfeld, No. 10 Civ. 50, 2011 WL 6034462, at *4 (E.D.N.Y. Dec. 5, 2011) ("A prima facie showing is satisfied when an examining physician affirms that no serious injury exists."); see also Gaddy v. Eyler, 79 N.Y.2d 955, 956-57 (1992).
Additionally, the Court finds that Defendants have provided sufficient evidence to demonstrate their prima facie case that Plaintiff's alleged back injury was not causally related to the Accident, (Defs. Br. at 9-10), but rather due to either chronic degenerative issues, Plaintiff's 2002 automobile accident, and/or breast reduction surgery. Defendants have propounded persuasive medical evidence, supported by independent medical examinations, of pre-existing chronic degenerative conditions in Plaintiff's back and, based on a review of Plaintiff's MRIs, no evidence of a post-traumatic injury to Plaintiff's back. (See, e.g., Defs. Ex. M); see also Pommells, 4 N.Y.3d at 580 ("In this case, with [defendant's] persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation.").
Defendants have also established a prima facie case that Plaintiff was not unable to attend to her usual activities for a period in excess of 90 days during the first 180 days following the Accident. This 90-day requirement "is to be construed literally" and is a necessary condition to bringing a claim. Tsveitel v. Geoghegan, No. 05 Civ. 5721 (DGT), 2009 WL 2182379, at *4 (E.D.N.Y. July 21, 2009) (citing Licari, 57 N.Y.2d at 236). Here, Plaintiff claims to have only missed approximately three weeks of work following the Accident. (Gil Tr. at 99-100, 103). Moreover, even when she returned, Plaintiff noted that she continued to "do the same things" at work that she did prior to the Accident. (Id. at 104). Plaintiff also alleges — based solely on self-serving testimony — that she could not complete certain household chores, such as laundry; could not lift certain objects at work; and had difficulty driving long distances for at least 90 of 180 days after the Accident. (Id. at 105-107). As Defendants note, however, these activities do "not constitute substantially all of the Plaintiff's normal activities for 90 of the first 180 days after the Accident. Indeed, rather than limiting h[er] normal activities to a great extent it appears to the Court that the Plaintiff's injuries only caused h[er] to suffer a slight curtailment to h[er] usual activities." Evans v. United States, 978 F.Supp.2d 148, 166 (E.D.N.Y. 2013) (internal quotations omitted); see, e.g., Licari, 57 N.Y.2d at 238 (twenty-four day absence from work, followed by resumption of plaintiff's usual taxi driving schedule did not satisfy statute); Szabo v. XYZ, Two Way Radio Taxi Assoc., 267 A.D.2d 134, 135 (1999) (two week absence from work, coupled with limitations with respect to plaintiff's detailed computer work and her inability to hold small things the way she used to, did not meet statute); Hernandez v. Cerda, 271 A.D.2d 569, 570 (2d Dep't 2000) (two week absence from work, followed by return to full-time employment, did not satisfy statute); Pierre v. Nanton, 719 N.Y.S.2d 706, 707 (2d Dep't 2001) ("Although the plaintiff claimed that he did not work for almost four months after the accident [as a result of disc herniation], he was not ordered by a doctor to stay home. Accordingly, [he] . . . failed to establish that he sustained a medically-determined injury.").
Since Defendants have offered medical evidence that, if credited, establishes the Accident did not cause any serious injury, the burden shifts to Plaintiff. To refute Defendants' showing and establish that she sustained a serious injury, Plaintiff must submit "`objective proof,' such as `an expert's designation of a numeric percentage of a plaintiff's loss of range of motion' . . . or `[a]n expert's qualitative assessment of a plaintiff's condition . . ., 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.'" Suarez v. Abe, 4 A.D.3d 288, 289 (1st Dep't 2004) (quoting Toure, 98 N.Y.2d at 350) (emphasis in original). "Such an `objective basis' for the expert's assessment may be provided by, for example, competent interpretations of MRI or CT scans." Id. Plaintiff's expert must also address any other intervening factors which may interrupt the causal chain between the Accident and claimed injury, such as a pre-existing condition. See, e.g., Style v. Joseph, 820 N.Y.S.2d 26, 28 (1st Dep't 2006) ("Where, as here, plaintiff sustained injuries as a result of accidents or incidents that preceded the accident giving rise to the litigation, plaintiff's expert must adequately address how plaintiff's current medical problems, in light of her past medical history, are causally related to the subject accident.") (citing cases).
Plaintiff alleges that she sustained serious injuries to her: (i) back; (ii) neck; (iii) knee; and (iv) left shoulder. (Pl. Opp.). Plaintiff contends that there is sufficient objective medical evidence in the record to satisfy the threshold burden with respect to three separate categories of section 5102(d): (i) permanent consequential limitation of use of a body organ or member; (ii) significant limitation of use of a body function or system; and (iii) a medically determined nonpermanent injury which prevented plaintiff from performing substantially all of her customary daily activities for 90 of the first 180 days following the Accident. (Id.). The first two categories of serious injury, permanent consequential or significant limitation of use, "are often analyzed together." Sanchez v. Travelers Cos., Inc., 658 F.Supp.2d 499, 510 (W.D.N.Y. 2009). For these two categories, the New York Court of Appeals has held that "whether a limitation of use or function is `significant' or `consequential' . . . relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part." Id. (quoting Toure, 98 N.Y.2d at 353). "Similarly, a serious injury under the 90/180 category also must be supported by objective medical evidence in admissible form establishing that the injury caused the alleged limitations in daily activity during the relevant time period." Kavulak v. Laimis Juodzevicius, A.V. Inc., 994 F.Supp.2d 337, 349 (W.D.N.Y. 2014).
Plaintiff contends that the Accident resulted in a "serious injury" to her back. Because Plaintiff was (i) involved in an earlier motor vehicle accident that resulted in back injuries, (Gil Tr. at 81-82), and (ii) had breast reduction surgery due to back pains, (id. at 91-92), she must demonstrate a causal connection between the Accident and her alleged back injuries.
In Franchini v. Palmieri, 763 N.Y.S.2d 381 (3d Dep't 2003), aff'd 1 N.Y.3d 536 (2003), the plaintiff commenced a negligence action to recover for injuries sustained in a motor vehicle accident. Id. at 382. The defendant, moving for summary judgment, argued that the plaintiff's alleged injuries were similar to injuries he had actually suffered prior to the subject accident. Id. In response, the plaintiff relied upon an affidavit from a chiropractor, who had begun treating the plaintiff immediately following the accident. Id. at 383.
Despite this, the Third Department affirmed the lower court's decision to grant the defendant's motion for summary judgment on the ground that the chiropractor failed to adequately address the plaintiff's pre-existing injuries. Specifically, although the chiropractor stated that the plaintiff's injuries were "separate and distinct from any pre-existing injuries that [she] may have had," the court found this to be insufficient to defeat the defendant's motion for summary judgment, because the chiropractor "failed to explain his opinion that the preexisting conditions had resolved [themselves]." Id.
On appeal, the New York Court of Appeals ("Court of Appeals") affirmed summary judgment in favor of the defendant. Franchini, 1 N.Y.3d at 537. In making its decision, the Court of Appeals explained that the "[p]laintiff's submissions were insufficient to defeat summary judgment because her experts failed to adequately address [the] plaintiff's preexisting back condition and other medical problems, and did not provide any foundation or objective medical basis supporting the conclusions they reached." Id.; see also Carter v. Full Serv., Inc., 815 N.Y.S.2d 41, 43 (1st Dep't 2006) ("In order to recover damages for non-economic loss related to a personal injury allegedly sustained in a motor vehicle accident, a plaintiff is required to present competent, non-conclusory expert evidence sufficient to support a finding . . . that the injury was proximately caused by the accident at issue. . . . [I]n the absence of an explanation of the basis for concluding that the injury was caused by the subject accident, and not by other possible causes evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation insufficient to support a finding that such a causal link exists.") (citations and internal quotation marks omitted); Montgomery v. Pena, 798 N.Y.S.2d 17, 18 (1st Dep't 2005) (granting the defendant's motion for summary judgment in part because the plaintiff's physician failed to mention the prior injuries or pre-existing conditions).
Similarly, here, none of the evidence that Plaintiff offers sufficiently addresses whether her pre-existing back injuries were resolved before the Accident. The conclusory and unsupported statements from Plaintiff's medical providers that her injuries from the "motor vehicle accident 12 to 13 years ago . . . had resolved," (Pl. Ex. 2 at 7), and their findings that the injuries are "causally related to the [A]ccident of September 11, 2014," (See, e.g., Pl. Exs. 2, 3, 4), are insufficient to establish causation.
Accordingly, Plaintiff's claim that her back injury was a "serious injury" within the meaning of New York Insurance Law § 5102(d) is denied as a matter of law.
To establish her claim of a "serious injury" to her neck, knee and left shoulder, Plaintiff relies primarily on the results of her examination by Dr. Zeren, her chiropractor, and Dr. Cabatu.
With respect to Plaintiff's neck, both Dr. Zeren and Dr. Cabatu found range-of-motion limitations in Plaintiff's cervical spine, see supra Section I.A., and Dr. Zeren noted spasms, and positive Cervical Compression, Jackson's Compression and Spurling's tests. Regarding the cervical-spine range-of-motion test, "[w]hile there is no set percentage for determining whether a limitation in range of motion is sufficient to establish serious injury, [ ] cases have generally found that a limitation of twenty percent or more is significant for summary judgment purposes." Booth v. Melville, No. 14 Civ. 7022 (CM), 2015 WL 7730931, at *11 (S.D.N.Y. Nov. 24, 2015) (internal citations omitted). Plaintiff's cervical-spine range-of-motion tests — the last of which was conducted on December 13, 2016 — revealed a percent loss that exceeds twenty percent. See supra Section I.A. Moreover, Dr. Cabatu's MRI of Plaintiff's neck indicated that Plaintiff sustained cervical radiculopathy, disc herniation and disc bulging. (Pl. Opp. at ¶ 44; Pl. Ex. 4; see also Pl. Ex. 5). Additionally, Dr. Moise reported that Plaintiff's diagnosis of cervical radiculopathy persisted even after administering the cervical epidural steroid injection on April 22, 2016. (Pl. Ex. 8). Dr. Zeren and Dr. Cabatu both certified that, in their medical opinions, these injuries were causally related to the Accident. (Pl. Ex. 2 at 5; Pl. Ex. 4 at 9). Taken together,
Regarding Plaintiff's left shoulder, an August 14, 2015 MRI demonstrated extensive partial rotator cuff tear, a SLAP tear, a subchondral cyst formation, and joint effusion. (Pl. Ex. 6 at 2). Additionally, a left-shoulder X-ray taken on March 30, 2015 indicated "at least grade II separation of the acromioclavicular joint." (Pl. Opp. at ¶ 47). Dr. Cabatu's left-shoulder range-of-motion test revealed that Plaintiff sustained a thirty percent loss in range of motion. (Id. at ¶ 57; Pl. Ex. 4 at 7). Additionally, at Plaintiff's December 13, 2016 examination, Dr. Cabatu reaffirmed that Plaintiff sustained a left-shoulder partial rotator cuff tear and a separation of the acromioclavicular joint. (Pl. Ex. 4 at 8). Dr. Cabatu opined that these injuries were a result of the Accident, and that any purported degeneration prior to the Accident was asymptomatic. (Id. at 9). Moreover, at Defendants' independent medical examination, Dr. Lager noted that it was in the realm of possibility that Plaintiff's shoulder injury was the result of a traumatic incident. (Defs. Ex. 11 at 9). The Court finds that this evidence is sufficient to rebut Defendants' prima facie case, and creates a genuine issue of material fact that is not ripe for summary judgment. See, e.g., Young Qin Luo, 625 F.3d at 778 (finding that the plaintiff's subjective evidence, along with medical evidence demonstrating, inter alia, "a tear in the [plaintiff's] right shoulder," was "sufficient . . . to raise a question of fact issue as to serious injury pursuant to N.Y. Ins. Law § 5104(a).").
Finally, with respect to Plaintiff's knee, Dr. Zeren concluded that Plaintiff showed "traumatic injury to the left knee" after conducting a McMurray's Test which was positive on the left knee producing medial pain (Pl. Ex. 2 at 8). Dr. Cabatu conducted a left-knee range-of-motion test on December 13, 2016, which revealed that Plaintiff's flexion was 110 degrees with pain, as compared to a normal flexion of 135 degrees — an 18.5% loss in range of motion. (Pl. Ex. 4 at 8); see also supra Section I.A. Dr. Cabatu concluded that Plaintiff sustained a "left knee strain/sprain . . . as a result of the [A]ccident of September 11, 2014." (Pl. Ex. 4 at 9). However, other than the results of Dr. Zeren's McMurray's Test and Dr. Cabatu's range-of-motion test, Plaintiff does not propound any objective evidence to demonstrate that her left-knee injury may be deemed a "serious injury." Absent additional objective evidence, the Court finds that Dr. Zeren's conclusory statement that Plaintiff suffered "traumatic injury to the left knee" and the results of Dr. Cabatu's range-of-motion test, also unsupported by corroborating objective medical evidence, are insufficient to rebut Defendants' prima facie case.
Based on this analysis, the Court concludes that the evidence of Plaintiff's neck and shoulder conditions is sufficient to support a jury finding that the injuries complained of are "serious injuries" within the meaning of New York Insurance Law § 5102(d). However, the dearth of evidence relating to Plaintiff's knee injury renders her claim insufficient to survive Defendants' motion for summary judgment.
Plaintiff does not raise a triable issue of fact regarding whether her injury was serious under the 90/180 day category. Plaintiff returned to work approximately three weeks after the Accident, and noted that she continued to "do the same things" at work that she did prior to the Accident. (Gil Tr. at 104). While Plaintiff alleges that she had difficulty completing household chores, driving long distances, lifting certain heavy items, and walking on stairs, (id. at 105-107), these activities "do not constitute substantially all of the Plaintiff's normal activities for 90 of the first 180 days after the accident. Indeed, rather than limiting h[er] normal activities to a great extent it appears to the Court that the Plaintiff's injuries only caused h[er] to suffer a slight curtailment to h[er] usual activities." Evans, 978 F.Supp.2d at 167 (internal quotations omitted); see also Berk v. Lopez, 718 N.Y.S.2d 332, 333 (1st Dep't 2000) (quoting Szabo, 267 A.D.2d at 135) ("There is no evidence that plaintiff's injuries prevented her from performing her professional duties; her need to relieve pain by lying on the floor of her office . . . or leaning against the wall during business meetings falls far short of satisfying the statutory threshold."); Murphy v. Arrington, 295 A.D.2d 865, 867 (3d Dep't 2002) (finding insufficient proof to demonstrate that plaintiff police officer, who was dragged by a car, sustained a serious injury under the 90/180 category where he missed only six weeks of work after the accident and was put on light duty assignment for another six weeks). Moreover, the Court notes that in a self-assessment questionnaire dated September 14, 2014 — three days after the Accident — submitted to Dr. Zeren, Plaintiff herself indicated that she could, inter alia, "lift heavy weights, without extra pain . . . look after [herself] normally without causing extra pain . . . do as much work as [she] want[s] to . . . [and] engage in all of [her] recreational activities." (Pl. Ex. 2 at 17).
Accordingly, Plaintiff's claim that she suffered a "serious injury" under the 90/180 category is denied as a matter of law.
For the foregoing reasons, the Defendants' Motion for Summary Judgment is granted in part and denied in part. Plaintiff's claims under the 90/180 category and those relating to a permanent consequential or significant limitation to her back and left knee are dismissed as a matter of law. The claims relating to a permanent consequential or significant limitation to Plaintiff's neck and shoulder remain. The Clerk is respectfully requested to terminate the pending motion. (Docket No. 34).
