NAOMI REICE BUCHWALD, District Judge.
Plaintiff Mohamed Imran Abdulazeez commenced this action on July 28, 2017 to recover damages for personal injuries purportedly sustained in a motor vehicle collision that occurred on the Cross County Parkway on October 30, 2016. Defendant Hermann E. Depazarce, the driver of the vehicle that collided into the rear of plaintiff's vehicle, has moved for summary judgment on the grounds that plaintiff's cervical injuries were not proximately caused by the subject accident and that the other injuries that plaintiff sustained are not "serious injuries" within the meaning of New York's No-Fault Insurance Law.
For the reasons discussed herein, defendant's motion is granted in part and denied in part.
This case arises from a three-car motor vehicle accident that occurred between Exits 7 and 8 of the Cross County Parkway at approximately 6:30 p.m. on October 30, 2016. At the time of the accident, plaintiff, who was then 35 years old, was the operator and registered owner of a 2016 Jeep Cherokee. The accident occurred when defendant's rental vehicle, a Chrysler sedan, collided with the rear of plaintiff's vehicle.
Plaintiff was transported by ambulance from the scene of the accident to Montefiore Mount Vernon Hospital, where plaintiff reported pain to his neck and back. While at the hospital, plaintiff underwent a physical examination that revealed midline tenderness of plaintiff's neck at C3-C4. A CT scan of plaintiff's cervical spine showed no acute findings. Plaintiff was discharged that evening with instructions to take cyclobenzaprine as prescribed for his neck and back pain.
On November 28, 2016, due to persistent pain purportedly stemming from the subject accident, plaintiff sought medical attention at St. Mary's Hospital in Waterbury, Connecticut. Pl.'s Rule 56.1 ¶ 58. There, plaintiff was prescribed Naprosyn and Flexeril for his neck pain and muscle spasms and was referred to Peter Zilahy, a chiropractor, for treatment. Pl.'s Rule 56.1 ¶ 63. During plaintiff's first appointment with Dr. Zilahy on December 1, 2016, Dr. Zilahy performed a variety of range of motion tests that revealed multiple restricted ranges of motion to plaintiff's cervical and thoracolumbar spines.
In February of 2017, prior to concluding treatment with Dr. Zilahy, plaintiff began seeing Dr. Dante Leven, a spinal surgeon. Having concluded that the MRIs that plaintiff obtained at Dr. Zilahy's direction were of poor quality and thus difficult to evaluate, and in light of plaintiff's symptoms and the results of a physical evaluation, Dr. Leven referred plaintiff for an additional MRI of his cervical spine, which plaintiff underwent on March 12, 2017.
On January 1, 2016, approximately ten months prior to the subject accident, plaintiff was assaulted while working at a gas station.
Plaintiff originally filed this action in the Supreme Court of the State of New York, Bronx County, against defendants EAN Holdings, LLC ("EAN"), Enterprise Rent-A-Car ("Enterprise"), and Hermann E. Depazarce. On October 4, 2017, EAN and Enterprise, both of whom have been dismissed as defendants in this action, removed the case to this Court.
Discovery having concluded, defendant now moves for summary judgment on the grounds that plaintiff did not sustain a "serious injury" under Insurance Law § 5102(d) as a result of the October 30 accident. In opposing defendant's motion, plaintiff maintains that, at a minimum, there is a genuine issue of material of fact as to whether the herniated disc in plaintiff's cervical spine, which allegedly necessitated plaintiff's July 2017 cervical spine surgery, was proximately caused by the October 30 accident.
Having considered the present record, the Court agrees with plaintiff that there are genuine issues of material fact regarding whether plaintiff's cervical spine injuries are causally related to the October 30 collision. Accordingly, defendant's motion for summary judgment is denied with respect to the issue of proximate cause. Defendant's motion for summary judgment is also denied with respect to plaintiff's claim that he sustained a "serious injury" entitling him to recovery under New York's No-Fault Insurance Law under a theory of either "permanent consequential limitation" or "significant limitation." Defendant's motion is granted, however, with respect to plaintiff's claim that he sustained a serious injury entitling him to recovery under the "90/180 category" of New York's No-Fault Law.
Summary judgment is appropriate when the moving party "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). "A fact is material when it might affect the outcome of the suit under governing law."
At summary judgment, a court must resolve all ambiguities and draw all justifiable inferences in the nonmoving party's favor.
A defendant moving for summary judgment in cases governed by New York's No-Fault Law "must establish a prima facie case that plaintiff did not sustain a `serious injury' within the meaning of Insurance Law § 5102(d)."
N.Y. Ins. Law § 5102(d).
Once a defendant has established a prima facie case that plaintiff did not sustain a "serious injury" under § 5102(d), "the plaintiff must rebut with sufficient admissible evidence to raise a genuine issue of fact as to whether the plaintiff has sustained a serious injury."
Finally, and of primary relevance here, "a plaintiff is required to present competent, non-conclusory expert evidence sufficient to support a finding, not only that the alleged injury is `serious' within the meaning of Insurance Law § 5102(d), but also that the injury was proximately caused by the accident at issue."
Defendant advances two arguments in support of his motion for summary judgment. The first argument, to which nearly all of defendant's motion is devoted, is that plaintiff's neck-related injuries are not causally related to the October 30 accident. Plaintiff's second argument is that, even assuming that plaintiff's neck injuries were caused by the subject accident, plaintiff still did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d). Each argument is addressed in turn.
The crux of defendant's causation argument is that, because the December 19 MRI was negative for a cervical spine disc herniation, any subsequent positive findings concerning a cervical spine disc herniation (i.e., the positive findings reflected in the March 12, 2017 MRI), could not have been caused by the October 30, 2016 collision.
In light of the foregoing, defendant maintains that plaintiff's "neck related claims must be dismissed as a matter of law," Def.'s Mem. at 19, and that once plaintiff's neck related claims are dismissed, plaintiff's remaining injuries — namely, the injuries to his lumbar spine and right wrist — do not rise to the level of a "serious injury" under the No-Fault Law. Thus, according to defendant, the entire action should be dismissed. Def.'s Mem. at 15.
Assuming, arguendo, that defendant has met his initial burden of establishing a prima facie case that the subject accident did not cause plaintiff's neck-related injuries, plaintiff has proffered sufficient contrary evidence to defeat summary judgment. Specifically, plaintiff points to the report and testimony of Dr. Leven, plaintiff's treating physician and spine surgeon, stating, inter alia, that:
Plaintiff has also submitted an affidavit from Dr. Zilahy, plaintiff's treating chiropractor, stating, inter alia, that:
Pl.'s Ex. 1 ¶ 10.
Viewed in the light most favorable to plaintiff, the foregoing raises triable issues of fact that preclude summary judgment on the issue of causation. Notwithstanding the opinion of defendant's expert, Dr. Lastig, that "the images and quality of the [December 19] MRI study was technically satisfactory and that the entire MRI study was within normal limits," Def.'s Mem. at 19, there remains, at a minimum, a material issue of fact concerning the reliability of the December 19 MRI images that are at the center of this dispute. Moreover, while Dr. Leven acknowledges that plaintiff's March 2017 cervical MRI reflects mild signs of degeneration to plaintiff's cervical spine, Dr. Leven's opinion that the degeneration was non-contributory to the herniated disc that necessitated the July 2017 surgery raises a factual issue with respect to defendant's suggestion that plaintiff's spinal disc herniation could have been caused by degeneration rather than the subject accident.
Because plaintiff has sufficiently rebutted defendant's assertion that the disc herniation was not caused by the subject accident, defendant's motion for summary judgment must be denied with respect to the issue of proximate cause.
Defendant argues that even assuming that plaintiff's cervical injuries were caused by the October 30 accident, plaintiff still did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d). In support of this argument, defendant relies upon case law stating that the existence of a herniated or bulging disc, in the absence of other objective medical evidence, is insufficient to prove a "serious injury."
Assuming, arguendo, that defendant has met his initial burden of demonstrating that plaintiff's cervical injuries are not "serious" within the meaning of § 5102(d), plaintiff has introduced sufficient objective evidence of a "permanent consequential limitation" and/or a "significant limitation of use" to defeat summary judgment on this issue. It is well-settled that to establish a "permanent consequential limitation" or a "significant limitation of use" under the No-Fault Law, the medical evidence submitted by plaintiff must contain either objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment evaluating plaintiff's present limitations vis-à-vis normal functioning.
Defendant has, however, made a prima facie showing of entitlement to judgment as a matter of law with respect to plaintiff's claim that he sustained a "serious injury" under the "90/180" category of the No-Fault Law, which requires a showing that a plaintiff was "unable to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the accident."
For the foregoing reasons, defendant's motion for summary judgment is denied with respect to (1) proximate causation and (2) plaintiff's allegation that he sustained a "serious injury" entitling him to recovery under New York's No-Fault Insurance Law under a theory of either permanent consequential limitation or significant limitation. Defendant's motion is granted with respect to plaintiff's claim that he has suffered a serious injury under the 90/180 category.
Counsel are directed to appear for a conference with the Court on January 27, 2020 at 2:30 p.m. at the United States Court House, 500 Pearl Street, New York, New York, in Courtroom 21A. Counsel should have authority to fully discuss all aspects of the litigation, including settlement.
The Clerk of. Court is respectfully directed to terminate all pending motions.
Under the No-Fault Law, a "serious injury" is defined as a personal injury that results in:
N.Y. Ins. Law § 5102(d). As relevant here, plaintiff claims that he suffered a "serious injury" under three of the aforementioned categories: (1) a "permanent consequential limitation of use"; (2) a "significant limitation of use"; and (3) the 90/180 category.
Dr. Mahadevan Shetty, the diagnostic radiologist who first reviewed the December 5 x-rays, reported no displaced fracture or dislocation with respect to the cervical spine x-ray, but did note "3 to 4mm of anterolisthesis of C3 over C4 and 2mm of anterolisthesis of C4 over C5." Def.'s Rule 56.1 ¶ 10. With respect to the lumbar spine x-ray, Dr. Shetty reported "no compression deformity, no displaced fracture or dislocation." Def.'s Rule 56.1 ¶ 11.
Defendant separately argues that Dr. Leven's opinion regarding plaintiff's cervical disc herniation should be disregarded because Dr. Leven has made contradictory statements regarding causality. Specifically, while Dr. Leven stated in his Declaration that he "could not definitively note any focal disc herniation or spinal stenosis in [plaintiff's] December 19, 2016 cervical spine MRI," Pl.'s Ex. B ¶ 5, he testified during his deposition "that he did not form an opinion as to the study because it was of poor quality."
