Turansky-Frances v. The United States of America
Filing
53
MEMORANDUM & ORDER granting in part and denying in part 42 Motion for Summary Judgment; granting 45 Motion for Summary Judgment; ORDERED that Plaintiff's motion for summary judgment (ECF No. 45) is GRANTED as to the issue of liability. Def endant's cross-motion for summary judgment (ECF No. 42) is GRANTED to the extent Plaintiff's injuries do not satisfy the 90/180 Category and DENIED in all other respects. The parties are directed to submit a proposed joint pre-trial order to Magistrate Judge Arlene R. Lindsay within thirty (30) days of the date of this Memorandum & Order. So Ordered by Judge Joanna Seybert on 3/31/2022. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
DOROTHY TURANSKY-FRANCES,
Plaintiff,
-against-
MEMORANDUM & ORDER
17-CV-2548(JS)(ARL)
UNITED STATES OF AMERICA,
Defendant.
--------------------------------X
APPEARANCES
For Plaintiff:
Howard R. Cohen, Esq.
Michael Krigsfeld, Esq.
Steven Hoffman, Esq.
William Schwitzer and Associates, P.C.
820 2nd Avenue, Suite 10th Floor
New York, New York 10017
George Joseph Pfluger, Esq.
William Schwitzer and Associates, P.C.
112 Calypso Drive
Lakeway, Texas 78734
Albert K. Kim, Esq.
Elefterakis, Elefterakis and Panek
80 Pine Street, 38th Floor
New York, New York 10005
For Defendant:
Megan Jeanette Freismuth, Esq.
James H. Knapp, Esq.
United States Attorney’s Office
610 Federal Plaza
Central Islip, New York 11722
SEYBERT, District Judge:
Dorothy Turansky-Frances (“Plaintiff”) commenced this
action against the United States of America (“Defendant”) pursuant
to the Federal Tort Claims Act (“FTCA”), alleging she was injured
in a motor vehicle accident caused by a negligent United States
Postal Service (“USPS”) employee.
Court
are
the
parties’
Currently pending before the
cross-motions
for
summary
judgment.
Plaintiff has moved for summary judgment on the issue of liability
and
Defendant
causation.
the
has
cross-moved
on
the
issues
of
damages
(Pl. Mot., ECF No. 45; Def. Mot., ECF No. 42.)
following
reasons,
Plaintiff’s
motion
is
GRANTED
and
For
and
Defendant’s motion is GRANTED IN PART AND DENIED IN PART.
BACKGROUND 1
I.
The Accident
On August 31, 2015 at approximately 6:00 p.m., Plaintiff
was involved in a motor vehicle accident at the intersection of
Neptune Avenue and Ladonia Street in Nassau County, New York. (Def.
56.1 Stmt. ¶ 2; Pl. 56.1 Stmt. ¶¶ 1, 2.)
At the time of the
collision, Plaintiff was operating a 2006 Ford Mustang which came
into contact with a Long-Life Vehicle owned by USPS. (Pl. 56.1
Stmt. ¶¶ 2-3.)
The Long-Life Vehicle was operated by a USPS
employee, Christopher Daley, who was driving the Vehicle in the
The facts are drawn from the parties’ Local Rule 56.1 Statements
and Counterstatements. (See Def. 56.1 Stmt., ECF No. 43-1; Pl. 56.1
Counterstmt., ECF No. 44; Pl. 56.1 Stmt., ECF No. 45-14; Def. 56.1
Counterstmt., ECF No. 45-15.)
Unless otherwise stated, a
standalone citation to a Rule 56.1 Statement or Counterstatement
denotes that either the parties agree or the Court has determined
that the underlying factual allegation is undisputed. Citation to
a party’s Rule 56.1 Statement or Counterstatement incorporates by
reference any document cited therein.
1
2
course of his employment for USPS as a full-time City Carrier
Assistant.
(Id. ¶¶ 3, 22-23.)
The
intersection
controlled by a stop sign.
where
the
(Id. ¶ 35.)
accident
occurred
was
The parties do not dispute
that Plaintiff brought her vehicle to a complete stop at the stop
sign and that her stopped vehicle was hit from behind by Daley.
(See id. ¶¶ 14-16, 37.)
accident
occurred
However, the parties dispute where the
within
the
intersection.
According
to
Plaintiff, the accident occurred while she was stopped at the stop
sign.
(See id. ¶¶ 14-15.)
On the other hand, Daley contends that
he brought his vehicle to a stop behind Plaintiff’s at the stop
sign
without
incident.
(See
Def.
56.1
Counterstmt.
¶ 38.)
According to Daley, after she stopped at the stop sign, Plaintiff
continued 5 to 10 meters into the intersection and he followed,
driving approximately half of a car length behind at a speed of
15 to 20 miles per hour.
(See id. ¶ 47; Daley Depo. Tr., ECF No.
45-8,
as
at
52.)
Then,
both
vehicles
proceeded
into
the
intersection, Daley claims that Plaintiff brought her vehicle to
a sudden stop.
(See Def. 56.1 Counterstmt. ¶¶ 39, 45, 47.)
He
applied his brake to attempt to avoid colliding into Plaintiff,
but he was unable to prevent the accident from occurring.
¶ 42.)
3
(Id.
II.
Plaintiff’s Medical History
A.
Pre-Accident Medical Treatment
1.
Dr. Benatar and Dr. Kirschen
In April 2009, Plaintiff saw David Benatar, M.D., and
complained of pain in her left wrist as well as pain along her
left thumb that had existed for about one year.
¶ 3.)
(Def. 56.1 Stmt.
Plaintiff saw Dr. Benatar again in October 2012 with
complaints of neck pain radiating toward the right scapula and
right trapezii region.
(Id. ¶ 6.)
He reviewed cervical x-rays
which revealed “loss of lordosis and degenerative changes, most
severe at C6-7, mildly at other levels” and noted these were “age
appropriate degenerative changes.”
(Id. ¶ 7.)
Plaintiff was then
referred to a physical therapist who, at an initial consultation,
assessed Plaintiff’s range of motion in her cervical spine as:
“flexion 45 degrees; extension 20 degrees; right lateral flexion
25 degrees; left lateral flexion 35 degrees; right lateral rotation
50 degrees; left lateral rotation 60 degrees.”
(Id. ¶¶ 11-12.)
At a March 2013 visit, Plaintiff complained of pain in
her neck that radiated into her right shoulder and upper arm.
¶ 14.)
Dr. Benatar assessed Plaintiff with cervical disc syndrome
with radiculopathy and suggested that she have an MRI scan.
¶ 15.)
(Id.
(Id.
On March 19, 2013, Plaintiff had an MRI that revealed
multilevel degenerative disc desiccation with disc space narrowing
at C5-6; very minimal disc bulging at C2-3, C3-4, and C4-5; a disc
4
bulge and small protrusion mildly indent the thecal sac without
compression
of
the
spinal
cord
at
C5-6;
and
moderate
spinal
stenosis at C6-7 with no significant cord compression. (Id. ¶ 16.)
Plaintiff continued to see Dr. Benatar almost every month from
March 2013 through October 2013 due to complaints of pain in either
her neck or back.
(Id. ¶¶ 17-37.)
Throughout this time, Dr.
Benatar assessed cervical and lumbar radiculopathy (id. ¶¶ 18, 20,
26, 28, 34), low back syndrome (id. ¶ 23), sciatic radiation (id.
¶ 26), and “slight diminution in sensation in the posterior aspect
of the right arm and right forearm in the C5-6-7 dermatomes” (id.
¶ 30).
Plaintiff underwent a second MRI on September 4, 2013,
which revealed no significant changes since the first scan in March
2013.
(See Pl. 56.1 Counterstmt. ¶ 31.)
Plaintiff
saw
Dr.
Benatar
again
in
March
2014
and
complained of occasional cervical pain as well as lower back pain
that radiated to her right hip and thigh.
(Def. 56.1 Stmt. ¶ 38.)
He assessed Plaintiff with low back syndrome with right sciatica.
(Id. ¶ 39.)
At this point, Plaintiff resumed monthly or even bi-
monthly visits until December 2014.
2014,
Plaintiff
complained
of
(Id. ¶¶ 38-82.)
radiating
neck
and
In April
back
pain,
difficulties turning her head, and pain extending to her fingers.
(Id. ¶¶ 41-42.)
In addition to low back syndrome with right
sciatica, Dr. Benatar also assessed cervical disc syndrome with
left
and
right
radiculopathy
and
5
degenerative
disc
disease
throughout the cervical spine.
(Id. ¶ 43.)
He also renewed
Plaintiff’s Percocet prescription, as she requested.
(Id. ¶ 45.)
In May 2014, Plaintiff complained of neck pain that radiated into
her right shoulder and arm, difficulty turning her head, and
stiffness that interfered with her ability to sleep.
(Id. ¶ 46.)
She was assessed with cervical sprain with cervical radiculopathy
and
low
back
radiculopathy.
syndrome
with
right-
and
left-sided
lumbar
(Id. ¶ 47.)
A June 20, 2014 MRI of Plaintiff’s lumbar spine revealed
mild degenerative disc disease and facet arthropathy.
(Id. ¶ 48.)
Several days later, Plaintiff saw Dr. Benatar, and renewed her
complaints of radiating neck pain and difficulty turning her head.
(Id. ¶ 49.)
She was diagnosed with cervical radiculopathy, lumbar
radiculopathy,
and
low
back
syndrome
based
upon
degenerative
changes. (See - - - ¶ 50.) Dr. Benatar also “explained to Plaintiff
id.
--that she cannot obtain prescriptions from other doctors, which she
has done in the past.
If the pharmacist notifies him of any extra
prescriptions, he will discontinue all her prescriptions.”
¶ 51.)
(Id.
At Plaintiff’s next visit in July, she complained of
radiating lower back pain and was assessed with low back syndrome
with
sciatica
radiculopathy.
and
cervical
(Id. ¶¶ 52-53.)
disc
syndrome
with
cervical
Dr. Benatar’s notes from that day
stated Plaintiff is a heavy user of “drugs” and that he has
discussed the “drug use” with her.
6
(Id. ¶ 54.)
Plaintiff’s
complaints of pain in July were similar to that of her complaints
from the prior month, and she was assessed with low back syndrome
with sciatica.
(Id. ¶¶ 55-56.)
Plaintiff then saw Dr. Neil B. Kirschen, M.D. in August
2014 with complaints of chronic lower back pain and numbness in
her fourth left toe.
(Id. ¶ 58.)
She was assessed with thoracic
or lumbosacral neuritis or radiculitis and lumbar radiculopathy,
and Dr. Kirschen administered a lumbar epidural steroid injection.
(Id.
¶¶ 59-60.)
Several
weeks
later
on
September
3,
2014,
Plaintiff saw Dr. Benatar with complaints of pain in her lower
back and in the right side of her neck.
(Id. ¶ 61.)
Plaintiff to return to physical therapy.
then
saw
Dr.
Kirschen
again
on
On
October
1,
2014,
(Id. ¶ 62.)
September
administered another steroid injection.
He advised
17,
Plaintiff
2014
and
he
(Id. ¶ 63.)
Plaintiff
saw
Dr.
Benatar
and
complained of low back pain radiating to her right hip and thigh,
occasional pain in her right foot, numbness in the tips of her
toes, stiffness of her cervical spine, and difficulty turning her
head to the right.
(Id. ¶ 64.)
Dr. Benatar assessed low back
syndrome with right sciatica and cervical radiculopathy.
¶ 65.)
(Id.
He advised Plaintiff that she should be evaluated by a
neurologist. (Id. ¶ 66.) She underwent an electrodiagnostic study
on October 29, 2014 that revealed evidence of acute bilateral L5
radiculopathy.
(Id.
¶
67.)
The
7
following
month,
Plaintiff
complained to Dr. Benatar of lower back pain as well as stiffness
and radiating neck pain.
(Id. ¶ 68.)
She was once again assessed
with right sciatica, chronic low back syndrome, and cervical
radiculopathy.
(Id. ¶ 69.)
Dr. Benatar had another discussion
with Plaintiff about her drug use and advised her to “eliminate
the heavy drug use.”
(Id. ¶ 70.)
The topic of Plaintiff’s drug
use carried over into her next visit with Dr. Benatar in December
2014, at which time Plaintiff complained of bilateral foot pain
that was assessed as radiculopathy.
(Id. ¶¶ 71-73.)
Dr. Benatar
noted that he had a “very long conversation” with Plaintiff that
was difficult because of her Percocet use and that he advised her
to
speak
with
Dr.
Kirschen
about
stopping
medication.
(Id.
¶¶ 72-73.)
2.
PA Sumner and Dr. Shah
Plaintiff then began to see Bethany Sumner, PA-C in
January 2015 for lower back pain and for the renewal of pain
medication.
(Id. ¶ 75.)
At this time, Plaintiff described her
lower back pain as dull, aching, and radiating.
also complained of sleeping difficulties.
Sumner
referred
Plaintiff
to
Dr.
Trusha
(Id. ¶ 76.)
(Id.)
Shah,
She
As a result, PA
M.D.,
a
pain
management doctor, to evaluate her for management of narcotic
analgesics.
(Id. ¶ 77.)
Plaintiff saw Dr. Shah on February 12,
2015 and complained of “pain primarily in the neck and shoulders”
“but now is in the lower back” as well as numbness and tingling in
8
her toes.
would
(Id. ¶¶ 78-79.)
take
medications.
over
writing
Dr. Shah advised Plaintiff that she
the
prescriptions
for
Plaintiff’s
(Id. ¶ 82.)
Plaintiff’s next visit with Dr. Shah was on June 9, 2015
at which time Plaintiff only complained of bilateral hand pain
that radiated into her thumb.
(Id. ¶ 83.)
The following month,
on July 7, 2015, Plaintiff told Dr. Shah she had pain in her right
buttock and increasing pain in her right arm and shoulder.
¶ 84.)
(Id.
Dr. Shah “scheduled a right sacroiliac joint injection
[which was ultimately administered on July 24, 2015] and increased
[Plaintiff’s] oxycodone” prescription.
(Id. ¶¶ 85-86.) Plaintiff
then saw Dr. Shah on August 3, 2015, due to numbness in her toes.
(Id. ¶ 87.)
Dr. Shah planned to schedule Plaintiff for an epidural
steroid injection.
B.
(Id. ¶ 88.)
Post-Accident Medical Treatment
After the August 31, 2015 collision, Plaintiff called 9-
1-1 and an ambulance arrived at the scene.
¶ 91.)
(See Def. 56.1 Stmt.
She was taken to the emergency room at St. Joseph Hospital
where she complained of neck and right shoulder pain as well as
“some tingling in her feet,” a sensation she “normally has.”
Plaintiff did not complain of back pain nor was Plaintiff diagnosed
with any fractures or broken bones.
Counterstmt. ¶ 233.)
9
(Id. ¶¶ 92-94, 95; Pl. 56.1
On September 4, 2015, Dr. Shah administered the steroid
injection that she had discussed with Plaintiff prior to the
accident.
(See Def. 56.1 Stmt. ¶¶ 99-100.)
Plaintiff next saw
Dr. Shah on September 8, 2015 and complained of lower thoracic and
neck pain, which Dr. Shah assessed a “VAS Pain,” score of six out
of ten.
(See Def. 56.1 Stmt. ¶ 101; Shah Medical Records, ECF No.
43-8, at 18.)
Dr. Shah’s notes do not refer to the car accident.
The next day, Plaintiff underwent an MRI of the cervical
spine that revealed straightening of the cervical lordosis with
broad-based left paracentral herniation in addition to diffuse
disc
bulging
and
bony
ridging
at
C5-6
resulting
in
cord
impingement, left exiting nerve root impingement and right exiting
nerve root encroachment at C6-7. (Def. 56.1 Stmt. ¶ 103; Sept. 9,
2015 MRI Rpt., ECF No. 43-9.)
acute
fracture
or
spinal
The MRI also confirmed there was no
cord
compression.
Counterstmt. ¶ 103; Sept. 9, 2015 MRI Rpt.)
(See
Pl.
56.1
Plaintiff underwent
an MRI of her thoracic spine shortly thereafter which revealed
right paracentral protrusion at T9-T10 without cord or exiting
nerve root impingement and suggested degenerative changes in lower
cervical spine at C5-6.
(See Def. 56.1 Stmt. ¶ 105.)
At some point after the accident, Plaintiff’s primary
care physician, Natalie Cher, D.O., referred Plaintiff to an
orthopedic specialist, Luis Alejo, M.D.
¶ 98.)
At
Plaintiff’s
first
(See Def. 56.1 Stmt.
appointment
10
with
Dr.
Alejo
on
September 14, 2015 she complained of pain in her neck and right
shoulder and mid-back; however, she did not complain of lumbar
pain.
(Id. ¶¶ 106-07, 113.)
Dr. Alejo assessed cervicalgia,
thoracic spine and right shoulder pain, and referred Plaintiff to
physical therapy.
(Id. ¶¶ 109-10.)
He made similar diagnoses
during two other appointments that same month.
(Id. ¶¶ 115, 117-
19.)
In October 2015, Plaintiff saw Dr. Shah three times.
During the first visit, Plaintiff noted improvement in her back
and legs, but still complained of pain in the lower back, and pain
concentrated in the left neck and arm.
(Id. ¶ 120.)
Dr. Shah
attributed the weather as a factor that increased Plaintiff’s pain.
(Id. ¶ 121.)
At the second visit, Plaintiff complained of neck
pain and Dr. Shah indicated that Plaintiff had “moderate tenderness
to touch along the C4, C5, and C6 spinous process” with extension
and lateral rotation to the right side reproducing Plaintiff’s
pain, which radiated into the neck and the shoulders.
Counterstmt. ¶ 124.)
(Pl. 56.1
Dr. Shah assessed cervical radiculopathy.
(Def. 56.1 Stmt. ¶ 125.)
Then, at the third visit, Dr. Shah
administered a cervical epidural steroid injection.
(Def. 56.1
Stmt. ¶ 126.)
Plaintiff returned to Dr. Alejo on November 4, 2015 with
complaints of pain in the neck and thoracic spine.
(Id. ¶ 127.)
He assessed cervical radiculopathy and pain in the thoracic spine.
11
(Id. ¶ 128.)
On December 1, 2015, Plaintiff followed-up with Dr.
Shah and rated her neck pain a five out of ten.
(Id. ¶ 130.)
Plaintiff was given a cervical epidural steroid injection that
provided her with relief.
(Pl. 56.1 Counterstmt. ¶ 130.)
Then,
Plaintiff saw Dr. Alejo on December 16, 2015 and January 27, 2016.
(Def. 56.1 Stmt. ¶¶ 131-32.)
She complained of neck and thoracic
spine pain and Dr. Alejo assessed cervical radiculopathy and pain
in the thoracic spine on each visit.
(Id.)
Beginning in February 2016, Plaintiff treated with Dr.
Shah on a near-monthly basis through July 2016.
In February 2016,
Plaintiff complained of neck pain and Dr. Shah assessed ongoing
cervical radiculopathy.
(Id. 134-35.)
In March 2016, Plaintiff
saw Dr. Shah for medication management and rated her neck pain as
a three out of ten.
(Id. ¶ 137, 140.)
Dr. Shah noted that
Plaintiff underwent liposuction and was prescribed Tylenol and
codeine.
(Id. ¶ 138.)
Dr. Shah assessed resolving cervical
radiculopathy, lumbar radiculopathy, and “SI joint sacroiliitis.”
(Id. ¶ 141.) Plaintiff was also advised that if she obtained opioid
medications from other physicians, she would be discharged from
Dr. Shah’s practice.
(Id. ¶ 139.)
Plaintiff returned to Dr. Shah
later that month with complaints of radiating right-sided neck
pain that went into her shoulder and sometimes caused numbness in
her
hand.
arthropathy
(Id.
and
¶ 142.)
scheduled
Dr.
Shah
right-sided
12
assessed
C4,
C5,
cervical
and
C6
facet
facet
injections.
(Id. ¶ 143.)
April 8, 2016.
The injections were administered on
(Id. ¶ 144.)
During a post-injection follow-up on
April 26, 2016, Plaintiff complained of mid-thoracic back pain;
however, she felt 65% relief with her neck and her shoulder pain.
(Id.
¶¶ 145-46;
resolving
Pl.
cervical
Counterstmt.
facet
¶ 145.)
arthropathy,
tenderness, and thoracic radiculopathy.
Dr.
Shah
thoracic
assessed
paraspinal
(Def. 56.1 Stmt. ¶ 147.)
The following month, Plaintiff complained of severe lower back
pain and Dr. Shah noted Plaintiff’s pain was relieved 80% due to
the injection administered in April 2016.
assessed
right-sided
myositis.
cervical
(Id. ¶ 149.)
facet
(Id. ¶ 148.)
arthropathy
Dr. Shah
and
lumbar
Then, in June and July 2016, Plaintiff
complained of neck and mid-thoracic spine pain.
(Id. ¶¶ 150-51.)
In addition to cervical facet arthropathy, Dr. Shah assessed
cervical myalgia.
(Id. ¶ 152.)
Plaintiff returned to Dr. Alejo on August 28, 2016,
complaining of neck pain.
(Id. ¶ 157.)
Dr. Alejo noted that the
“problem has been gradually worsening” and that the “pain is
associated
with
a[]
Counterstmt. ¶ 157.)
[motor
vehicle
accident].”
(Pl.
56.1
He assessed cervical radiculopathy due to
intervertebral disc disorder and noted that Plaintiff “had been
dropped
by
¶¶ 158-59.)
her
pain
management
doctor.”
(Def.
56.1
Stmt.
She was given a list of other pain management doctors
but was not accepted by any of them.
13
(Id. ¶ 160.)
Dr. Alejo
recommended that she ween from Percocet and referred her to another
pain management doctor, Aristide Burducea, D.O., for a second
opinion.
(Id. ¶ 161.)
Plaintiff underwent a MRI of the cervical spine on August
31, 2016 that revealed “straightening of the cervical lordosis and
multilevel disc bulging with disc herniations in the lower cervical
spine resulting in left greater than right cord impingement and
left greater than right exiting C6 nerve root impingement at C5-6”
as well as “right greater than left cord impingement with bilateral
exiting C7 nerve root encroachment left greater than right at
C6-7.”
(Id. ¶ 162.)
On September 8, 2016, Plaintiff complained of neck pain
to Dr. Alejo, and his assessment remained unchanged from the last
visit.
(Id. ¶¶ 163-64.)
Plaintiff then saw Dr. Burducea on
September 13, 2016 and maintained her complaint of neck pain. (Id.
¶ 165.)
Upon examination, Dr. Burducea found moderate radicular
pain on the right only; fully and asymptomatic cervical spine
extension to 60 degrees; restricted right lateral flexion with
moderate posterior and lateral neck pain; full and asymptomatic
right lateral rotation to 80 degrees; and left lateral flexion and
rotation full and asymptomatic.
(Id. ¶ 166.)
spine was normal and had full range of motion.
Plaintiff’s lumbar
(Id. ¶ 168.)
Dr.
Burducea assessed cervical region radiculopathy, “other long term
(current) drug therapy,” and “spondylosis, cervical region.”
14
(Id.
¶ 167; Pl. 56.1 Counterstmt. ¶ 167.)
narcotics.
Plaintiff asked him for
(Def. 56.1 Stmt. ¶ 169.)
Plaintiff then treated with Dr. Karen Avanesov, D.O., on
September 26, 2016, and complained of neck pain radiating to both
arms.
(Id. ¶ 170.)
Plaintiff told Dr. Avanesov that she “was in
[a] normal s[t]ate of health prior to an accident” and that she
had a history of neck pain “about 5 years ago” with complete
resolution of symptoms.
spine appeared normal.
(Id. ¶ 171.)
(Id. ¶ 172.)
An x-ray of the thoracic
Dr. Avanesov assessed C5-7
cervical disc herniation and cervical radiculopathy, and noted
that Plaintiff’s failure with non-operative care rendered her a
candidate for C5-7 anterior cervical discectomy and interbody
fusion.
(Id. ¶ 173.)
Plaintiff
returned
to
Dr.
throughout October and November 2016.
Burducea
several
times
She complained of pain in
the mid-back, right shoulder, neck, and cervical area, as well as
pain radiating down the right shoulder, hands, and thumb.
¶ 174;
Pl.
cervical
56.1
Counterstmt.
¶
region
spondylosis,
cervicalgia,
disorder with radiculopathy.
174.)
Dr.
Burducea
and
assessed
cervical
(Def. 56.1 Stmt. ¶ 175.)
(Id.
disc
Although
Dr. Burducea advised Plaintiff to do physical therapy, Plaintiff
did not attend.
(Id. ¶¶ 175-76.)
Plaintiff’s lumbar spine was
normal with full range of motion throughout October 2016.
¶ 178.)
(Id.
Then, in November 2016, Plaintiff complained of lumbar
15
and neck pain, and pain radiating down her arms to her hands.
¶ 179.)
(Id.
Dr. Burducea assessed intervertebral disc disorders with
radiculopathy of the lumbar region and low back pain, and he
administered a lumbar steroid transforaminal epidural at L4 and
L5.
(Id. ¶¶ 180-81.)
On November 14, 2016 and January 9, 2017, Plaintiff
complained to Dr. Avanesov of neck pain radiating into her arms.
(Id.
¶¶ 182,
184.)
Dr.
Avanesov
assessed
cervical
region
radiculopathy, cervical disc displacement, cervicalgia, cervical
disc disorder with radiculopathy, low back pain, thoracic spine
pain, and intervertebral disc disorders with radiculopathy in the
lumbar region.
(Id. ¶¶ 183, 185.)
During both visits, Dr.
Avanesov performed physical exams that revealed Plaintiff’s range
of
motion
was
limited
in
the
cervical
spine.
(Pl.
56.1
Counterstmt. ¶¶ 182, 184.)
Dr. Avanesov performed an anterior cervical discectomy
and intervertebral fusion at C5-6 and C6-7 on February 2, 2017.
(Def. 56.1 Stmt. ¶ 187.)
“C5-6,
C6-7
radiculopathy;
posterior
axial
Plaintiff’s pre-operative diagnosis was:
cervical
neck
pain;
disk
upper
insult; and cervical spine stenosis.
was the same.”
(Id. ¶ 188.)
herniation;
extremity
cervical
neurological
Her postoperative diagnosis
The operative report also noted
“posterior cervical disc herniation with annular tear, extruded
disc
fragment,
central
cord
compression,
16
as
well
as
neural
foraminal and lateral recess compression from extruded fragment.”
(Pl. 56.1 Counterstmt. ¶ 188.)
Plaintiff
next
treated
with
Vadim
Lerman,
D.O.,
on
February 10, 2017 with complaints of neck and mid-low back pain.
(Def. 56.1 Stmt. ¶ 189.)
She also complained that “sleeping in
the wrong position makes the pain worse.”
assessed
cervical
displacement,
region
cervicalgia,
(Id. ¶ 190.)
radiculopathy,
cervical
disc
Dr. Lerman
cervical
disc
disorder
with
radiculopathy, intervertebral disc disorders with radiculopathy in
the lumbar region, and low back pain.
(Id. ¶ 191.)
Since it had
only been one week after Plaintiff’s operation, Dr. Lerman expected
gradual improvement over the next few weeks, e.g., that Plaintiff
would resume driving in two to three weeks and be able to return
to full activity within four to six weeks.
(Id. ¶ 192.)
On March 6, 2017, Plaintiff followed up with Dr. Avanesov
with complaints of increased pain due to sleeping on her neck
wrong.
cervical
(Pl. 56.1 Counterstmt. ¶ 193.)
region
radiculopathy,
Dr. Avanesov assessed
cervical
disc
displacement,
cervicalgia, cervical disc disorder with radiculopathy, and pain
in the thoracic spine.
(Id. ¶ 194.)
She also noted Plaintiff’s
hand pain and numbness resolved after the surgery.
(Id. ¶ 195.)
Plaintiff returned to Dr. Avanesov in April and May 2017 with
similar neck pain complaints due to her sleeping position.
56.1 Stmt. ¶¶ 196, 199.)
(Def.
Then, in June 2017, Plaintiff complained
17
of neck pain as well as posterior neck tenderness and radiating
mid-back pain to Dr. Avanesov.
(Id. ¶ 203.)
Dr. Avanesov assessed
cervical disc displacement at C5-6 and C6-7, mid-cervical region
disc displacement, and cervicalgia.
(Id. ¶ 204.)
In August 2017,
Plaintiff reported that her neck pain was improving, but her
complaints of posterior neck tenderness persisted.
(Id. ¶ 208.)
At this time, Dr. Avanesov assessed cervical region radiculopathy,
cervicalgia, intervertebral disc disorders with radiculopathy in
lumbar region, and low back pain.
(Id. ¶ 209.)
Plaintiff began treating with a new pain management
doctor, Vitaliy Zhivotenko, D.O., on December 22, 2017.
¶ 214.)
(Id.
She complained of neck and lower back pain, with the neck
pain rated as a seven out of ten.
(Id.)
She also reported that
“she was in a normal state of health up until the August 31, 2015
accident.”
(Id. ¶ 215.)
syndrome,
other
radiculopathy,
Dr. Zhivotenko assessed “postlaminectomy
cervical
other
disc
displacement,
intervertebral
disc
cervical
region
displacement,
lumbar
region and lumbosacral, and long term (current) use of opiate
analgesics.”
examination
(Id.
and
¶ 216.)
noted
neck/cervical region.
He
tenderness
also
and
performed
muscle
a
spasms
physical
in
the
(Pl. 56.1 Counterstmt. ¶ 216.)
Plaintiff began treating with another physician, Leon
Reyfman, M.D., FIPP, RpH, in January 2018 due to neck and lower
back
pain.
(Def.
56.1
Stmt.
¶ 217.)
18
Dr.
Reyfman
assessed
postlaminectomy
syndrome,
other
cervical
disc
displacement,
cervical region radiculopathy, and lumbar region and lumbosacral
intervertebral disc displacement.
(Id. ¶ 219.)
He also noted
similar findings as Dr. Zhivotenko upon physical examination of
Plaintiff.
(Pl. 56.1 Counterstmt. ¶ 219.)
An MRI scan of
Plaintiff’s cervical spine taken that same month revealed a C5
screw
showed
signs
of
early
loosening
and
the
degenerative osteophytes. (Def. 56.1 Stmt. ¶ 220.)
presence
of
The report on
the MRI also noted a thin lucency around the screw in the C5
vertebral body was present and may indicate early loosening; and
that bony union could not be demonstrated.
(Pl. 56.1 Counterstmt.
¶ 220.)
Plaintiff returned to Dr. Reyfman on February 2, 2018,
and
diagnoses
his
assessments.
did
not
change
from
his
in
January
2018
(Def. 56.1 Stmt. ¶ 221.)
PROCEDURAL HISTORY
Plaintiff commenced the instant case against Defendant
on April 28, 2017, seeking $10 million in damages for injuries she
allegedly sustained as a result of the August 2015 accident. (See
generally Compl., ECF No. 1.)
Complaint
discovery.
on
August
22,
Defendant filed an Answer to the
2017,
(Answer, ECF No. 11.)
19
and
the
parties
proceeded
to
The instant motions followed.
ANALYSIS
I.
Legal Standard
Summary
judgment
is
appropriate
where
there
is
“no
genuine dispute as to any material fact and the movant is entitled
FED. R. CIV. P. 56(a).
to judgment as a matter of law.”
“Material
facts are those which might affect the outcome of the suit under
the governing law, and a dispute is genuine if the evidence is
such
that
a
reasonable
nonmoving party.”
jury
could
return
a
verdict
for
the
Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,
164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499
F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).
The movant bears the burden of establishing that there are no
genuine
issues
of
material
fact.
CILP
Assocs.,
L.P.
v.
PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013).
Once the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).
Conclusory allegations or denials will not defeat
summary judgment.
Id.
In reviewing the record, “the court is required to
resolve
all
ambiguities
and
draw
all
permissible
factual
inferences in favor of the party against whom summary judgment is
sought.”
Sheet Metal Workers’ Nat’l Pension Fund v. Vadaris Tech.
20
Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,
2015) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.
1997)).
The Court considers the “pleadings, deposition testimony,
answers to interrogatories and admissions on file, together with
any other firsthand information including but not limited to
affidavits.”
II.
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
Discussion
The
Federal
Torts
Claims
Act
(“FTCA”)
authorizes
a
plaintiff to “to bring certain state-law tort suits against the
Federal Government.”
46 (2021).
See Brownback v. King, 141 S. Ct. 740, 745-
A claim arising under the FTCA is actionable where it
is:
[1] against the United States, [2] for money
damages, . . . [3] for injury or loss of
property,
or
personal
injury
or
death
[4] caused by the negligent or wrongful act or
omission of any employee of the Government
[5] while acting within the scope of [their]
office or employment, [6] under circumstances
where the United States, if a private person,
would be liable to the claimant in accordance
with the law of the place where the act or
omission occurred.
Id. at 746 (quoting FDIC v. Meyer, 510 U.S. 471, 475-476 (1994)).
State law is “the source of substantive liability under the FTCA.”
Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012) (quoting
Meyer, 510 U.S. at 478).
As such, the Government’s “liability is
determined by the law of the state where the accident occurred.”
Berroa v. United States, No. 07-CV-3521, 2010 WL 532862, at *3
21
(S.D.N.Y. Feb. 5, 2010) (citing Patrello v. United States, 757 F.
Supp. 216, 218 (S.D.N.Y. 1991)).
Here, the parties agree that the underlying accident
occurred in New York and that New York law governs Plaintiff’s
claims.
See Avlontis v. United States, No. 16-CV-2521, 2020 WL
1227164, at *5 (E.D.N.Y. Mar. 13, 2020) (“Because the motor vehicle
collision underlying this action occurred in New York, New York
tort law applies.” (quoting Hyacinthe v. United States, No. 05CV-1363,
2009
WL
4016518,
at
*6
(E.D.N.Y.
Nov.
19,
2009))).
Pursuant to New York law, a plaintiff must demonstrate, by a
preponderance of the evidence, three elements to prevail on a
negligence claim:
(1) “the existence of a duty on defendant’s
part as to plaintiff; (2) a breach of this duty; and (3) injury to
the plaintiff as a result thereof.”
Comba v. United States, 535
F. Supp. 3d 97, 105 (E.D.N.Y. 2021) (quoting Aegis Ins. Servs.,
Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 177 (2d Cir. 2013)).
Here, Plaintiff moves for summary judgment “as to the
issue of liability.”
(See Pl. Mot. at 1.)
Defendant cross-moves
for summary judgment on damages and causation.
1.)
(See Def. Mot. at
The Court will now address each of the parties’ motions in
turn.
A.
Liability
“New York courts have long recognized that ‘[a] rear-
end collision with a stopped or stopping vehicle creates a prima
22
facie case of liability with respect to the operator of the
rearmost vehicle.’”
Comba, 535 F. Supp. 3d at 105 (quoting
Filippazzo v. Santiago, 277 A.D.2d 419, 419, 716 N.Y.S.2d 710
(2000)).
In
such
cases,
the
defendant
bears
the
burden
of
providing “a non-negligent explanation of the collision in order
to overcome the inference of negligence and defeat the motion for
summary judgment.”
Luizzi v. Pro Transp. Inc., No. 02-CV-5388,
2009 WL 252076, at *4 (E.D.N.Y. Feb. 2, 2009); Cajas-Romero v.
Ward, 965 N.Y.S.2d 559, 561 (N.Y. 2013).
Accepted examples of
“non-negligent explanations” include mechanical failure of the
rearmost
vehicle,
a
sudden
stop
unavoidable skidding on wet pavement.
of
the
lead
vehicle,
and
See Comba, 535 F. Supp. 3d
at 106 (citing Filippazzo, 277 A.D.2d at 419, 716 N.Y.S.2d 710).
Defendant contends that the parties’ varying testimony
as to how the accident occurred constitutes a material issue of
fact that precludes summary judgment on the issue of liability.
The Court disagrees.
Regardless of whether the accident occurred
while Plaintiff was at the stop sign or while she was in the middle
of
the
intersection,
the
parties’
testimony
is
clear
that
Plaintiff’s vehicle was at a stop at the time of the collision. 2
Although Defendant argues that this case does not involve a rearend accident with a stopped vehicle, Defendant contradicts itself
in its opposition papers through the testimony it cites by stating:
“[Daley’s] testimony further establishes that he had sufficient
time to at least attempt to avoid contacting Plaintiff’s vehicle
2
23
This fact in and of itself establishes a prima facie case of
negligence.
Defendant then argues that Plaintiff brought her vehicle
to a sudden stop in an attempt to establish a non-negligent
explanation for the collision. 3
On this issue, Defendant submits
“it was not reasonably foreseeable that Plaintiff would stop at
the stop sign at a four-way intersection, start to proceed through
that intersection, and then stop suddenly partway through that
intersection.”
(Def. Opp’n at 7-8.)
the
to
duty
‘not
stop
suddenly
or
Although “a driver . . . has
slow
down
without
proper
signaling so as to avoid a collision,’” see Chepel v. Meyers, 762
N.Y.S.2d 95, 97 (N.Y. App. Div. 2d Dep’t 2003) (quoting Purcell v.
Axelsen, 729 N.Y.S.2d 495, 496 (N.Y. App. Div. 2d Dep’t 2001)),
“[i]t is well established that when the driver of an automobile
approaches another automobile from the rear, he or she is bound to
maintain a reasonably safe rate of speed and control over his or
her vehicle, and to exercise reasonable care to avoid colliding
with the other vehicle.”
Id.
None of the cases cited by Defendant
in its opposition address this latter principle regarding the
by braking after she stopped suddenly in the intersection.”
Opp’n at 8 (citing Daley Tr. at 62-63) (emphasis added).)
(Def.
Notably, Defendant does not attempt to argue the accident was
caused, in part, due to wet pavement despite the fact that Daley
testified there was a “slight drizzle” on the day of incident.
(See Pl. 56.1 Stmt. ¶ 27 (citing Daley Depo. Tr. at 36-37).)
3
24
obligations of the driver of the rear vehicle.
“[I]n the absence
of any evidence that the defendant was maintaining a reasonably
safe distance and speed behind the plaintiff's vehicle as required
by Vehicle and Traffic Law § 1129 (a), [defendant’s] claim that
the plaintiff’s vehicle came to a sudden stop [i]s insufficient to
raise
a
triable
issue
of
fact
as
to
whether
nonnegligent explanation for the collision.”
there
Court
were
to
credit
Daley’s
version
a
Hackney v. Monge,
960 N.Y.S.2d 176, 178 (N.Y. App. Div. 2d Dep’t 2013).
the
was
of
the
Thus, if
underlying
incident, he was travelling one half of a car length behind
Plaintiff at a speed of approximately 15 to 20 miles per hour
before Plaintiff suddenly stopped in the intersection.
Then,
despite his efforts to avoid a collision by applying his brakes,
Daley was unable to stop in time.
The Court finds Cajas-Romero v. Ward to be instructive.
965 N.Y.S.2d 559, 562 (N.Y. App. Div. 2d Dep’t 2013).
In Cajas-
Romero, the defendant was stopped behind the plaintiff at a red
light.
Id. at 852.
After the light turned green, the plaintiffs
proceeded into the intersection and the defendant followed behind
at a rate of speed of approximately five miles per hour. Id.
The
defendant stated that a third vehicle “cut off” the plaintiffs
causing the plaintiffs to bring their vehicle to a sudden stop,
and the defendant was unable to bring his vehicle to a stop in
time to prevent a collision with the plaintiffs.
25
Id.
Similar to
the
instant
case,
the
parties
in
Cajas-Romero
had
differing
accounts of the circumstances leading up to the accident.
See id.
Notwithstanding, the court accepted the defendant’s version of the
events as true and found that the defendant failed to create a
triable issue of fact by establishing a non-negligent explanation
for the collision.
Id.
The court based its holding upon the fact
that “the defendant was traveling extremely close behind the
plaintiffs’
vehicle
without
leaving . . . a
distance from the plaintiffs’ vehicle.”
Id.
reasonably
safe
Similar to the
defendant in Cajas-Romero, Daley likewise travelled very closely
behind Plaintiff’s vehicle as she proceeded into the intersection.
This, coupled with the fact that Daley was travelling at a greater
speed behind Plaintiff than the Cajas-Romero defendant travelled
behind the plaintiff in that case, supports the conclusion that
Daley failed to maintain a reasonably safe distance and speed
behind Plaintiff.
Accordingly, the Court does not find there to
be an issue of fact regarding the existence of a non-negligent
explanation for the accident.
Therefore, Plaintiff’s motion for
summary judgment on the issue of liability is GRANTED.
B.
Damages
New
York’s
“No-Fault
Law”
“‘places
limits
on
any
recovery by a person involved in an automobile accident,’ providing
recovery only for (a) economic losses beyond the ‘basic economic
loss’ threshold and (b) non-economic losses arising from ‘serious
26
injury.’”
See Comba, 535 F. Supp. 3d at 106 (quoting N.Y. INS. L.
§§ 5102, 5104).
Plaintiff does not argue that she has suffered
economic losses and instead focuses solely on her claim for damages
based upon non-economic losses.
Moreover, in her Local Rule 56.1
Counterstatement of Facts, Plaintiff admits that she does not have
a claim for lost wages nor a claim for out-of-pocket medical
expenses.
(See Pl. 56.1 Counterstmt. ¶¶
247-48.)
As such, the
Court will focus on whether Plaintiff has suffered from a noneconomic loss stemming from a “serious injury.”
The No-Fault Law defines a “serious injury” as:
A personal injury which results in [1] death;
[2]
dismemberment;
[3]
significant
disfigurement; [4] a fracture; [5] loss of a
fetus; [6] permanent loss of use of a body
organ,
member,
function
or
system;
[7] permanent consequential limitation of use
of a body organ or member; [8] significant
limitation of use of a body function or
system; or [9] a medically determined injury
or impairment of a non-permanent nature which
prevents the injured person from performing
substantially all of the material acts which
constitute such person’s usual and customary
daily activities for not less than ninety days
during the one hundred eighty days immediately
following the occurrence of the injury or
impairment.
N.Y. INS. L. § 5102(d).
As the summary judgment movant, the
defendant “must establish a prima facie case that plaintiff did
not sustain a ‘serious injury’ within the meaning of Insurance Law
§ 5102(d).”
Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir.
2010) (quoting Barth v. Harris, No. 00-CV-4189, 2001 WL 736802, at
27
*2 (S.D.N.Y. June 25, 2001)).
defendant
“may
rely
on
the
In support of its argument, a
unsworn
reports
by
plaintiff’s
physicians, but must provide evidence from its own physicians in
the form of sworn affidavits.” Id. After a defendant demonstrates
its prima facie case, the burden shifts to the plaintiff to prove
that she did sustain a serious injury.
at 107.
See Comba, 535 F. Supp. 3d
A plaintiff can only satisfy this burden by offering
“objective proof” of her injury; “[s]ubjective complaints of pain
will not, standing alone, support a claim for serious injury.”
Yong Qin Luo, 625 F.3d at 777 (citing Son v. Lockwood, No. 07-CV4189, 2008 WL 5111287, at *5-6 (E.D.N.Y. Nov. 26, 2008)).
A
plaintiff must proffer evidence in the form of sworn affidavits by
physicians.
Id.
Of
the
nine
types
of
personal
injuries
that
may
constitute a “serious injury” pursuant to the No-Fault Law, only
three are at issue here:
(1) permanent consequential limitation
of use of a body part or organ; (2) significant limitation of use
of a body part or organ; and (3) a non-permanent injury that
prevents performance of customarily daily activities for not less
than 90 days during the 180 days following the occurrence of the
injury, also known as a “90/180 Claim.”
Plaintiff
claims
she
sustained
(See Pl. Opp’n at 10.)
personal
injuries
to
her
neck/cervical spine and mid-back/thoracic spine as a result of the
accident.
(Id. at 2.)
In particular, Plaintiff contends the
28
accident “caused an aggravation and/or exacerbation of [her] preexisting condition in her cervical spine, which progressively
worsened
and
ultimately
necessitated
an
anterior
cervical
discectomy and fusion surgical procedure to her cervical spine.”
(Id.) 4
The Court will now assess whether Plaintiff’s injuries are
sufficiently “serious.”
1.
Permanent Consequential Limitation and
Significant Limitation
Injuries based upon “permanent consequential limitation”
and “significant limitation” are often considered together.
See
Avlonitis v. United States, No. 16-CV-2521, 2020 WL 1227164, at *6
(E.D.N.Y. Mar. 13, 2020) (citing Williams v. United States, No.
09-CV-0933, 2014 WL 11460892, at *8 (N.D.N.Y. Jan. 28, 2014),
aff’d, 597 F. App’x 647 (2d Cir. 2015)).
the
plaintiff
prove
permanence
to
“With the exception that
satisfy
the
‘consequential
limitation’ definition, ‘significant limitation’ is essentially
identical.”
‘significant’
Id.
or
“[W]hether a limitation of use or function is
‘consequential’
(i.e.,
important)
relates
to
medical significance and involves a comparative determination of
Plaintiff has “withdrawn any claim of injury to her lumbar spine
and her bilateral extremities.”
(Id. at 2 n.2.)
In a similar
vein, Defendant argues that Plaintiff has abandoned any claim of
injury to her thoracic spine as well because “Plaintiff has not
even attempted to raise any triable issue of fact with respect to
[such] a purported injury” and has submitted no expert evidence on
this issue. (Def. Reply at 6.) The Court agrees with Defendant,
and, consequently, will only consider Plaintiff’s claims for
“serious injury” as they relate to her cervical spine.
4
29
the degree or qualitative nature of an injury based on the normal
function, purpose and use of the body part.”
Avlonitis, 2020 WL
1227164, at *6 (quoting Toure v. Avis Rent A Car Sys., Inc., 774
N.E.2d
1197,
1201
(N.Y.
2002)).
“Thus,
a
plaintiff
must
demonstrate ‘something more than . . . a minor, mild or slight
limitation of use.’”
Id. (quoting Ventra v. United States, 121 F.
Supp. 2d 326, 333 (S.D.N.Y. 2000)).
To support such a claim, a
plaintiff “must present objective medical evidence.”
Id. (quoting
Seales v. United States, No. 15-CV-6969, 2019 WL 7753451, at *24
(E.D.N.Y. Oct. 21, 2019)).
Defendant meets its initial burden to demonstrate that
Plaintiff failed to sustain a “serious injury” by citing to the
sworn declaration and report of its expert, Dr. Robert Goldberg,
D.O. (See Def. Mot. at 10-13; Goldberg Decl., ECF No. 43-14;
Goldberg Rpt., ECF No. 43-15.) After reviewing Plaintiff’s medical
records that pre- and post-dated the accident, Dr. Goldberg opined
that Plaintiff’s “current cervical spine symptoms pre-existed the
accident an[d] there is no objective evidence that her symptoms
were exacerbated as a result of the accident.
The findings after
the accident are expected as a result of degenerative disc disease
and
would
have
been
the
same
regardless
of
the
accident.”
(Goldberg Decl. ¶ 21; Goldberg Rpt. at 1-2.) He examined Plaintiff
on February 16, 2018 and assessed Plaintiff’s cervical spine range
of motion to be normal, except that the “active passive range of
30
motion of the arms is mildly impaired,” and that his observations
and
findings
“show
the
normal
expected
function
for
individual, and do not suggest any medical impairment.”
Decl. ¶ 13.)
this
(Goldberg
In particular, his testing revealed: flexion of 40
degrees (normal is 45 degrees); extension of 40 degrees (normal is
50 degrees); right side bending of 40 degrees (normal is 45
degrees); left side bending of 35 degrees (normal is 45 degrees);
and right and left rotation of 60 degrees (normal is 80 degrees).
(Id.
¶
13.)
He
noted
that
since
2013,
Plaintiff
has
been
“prescribed opiates by a number of different providers [for neck
and back pain], and after the subject accident[,] her narcotic
dose [did] not change.”
(Goldberg Rpt. at 13.)
In conclusion, he
stated that “Plaintiff is not disabled and does not have any
substantial limitations as a result of the accident.”
(Goldberg
Decl. ¶ 23; see also Goldberg Rpt. at 13 (“Ms. Turansky-Frances is
not disabled from her usual work as a result of the subject
accident.”).)
The burden now shifts to Plaintiff to create a genuine
issue of material fact as to whether she suffered a permanent
consequential and/or significant limitation as a result of the
accident.
Plaintiff argues that the motor vehicle collision
aggravated
and
cervical
spine
required
an
exacerbated
which
anterior
her
pre-existing
progressively
cervical
worsened
discectomy
31
condition
and
and
in
her
ultimately
fusion
surgical
procedure.
Plaintiff
(See Pl. Opp’n at 2.)
relies
upon
her
own
In support of this argument,
complaints
of
pain
and,
more
importantly, the expert opinion of Dr. Avanesov, who began treating
Plaintiff on September 26, 2016.
(Id. at 4, 21-22.)
Dr. Avanesov
opined that Plaintiff “may demonstrate some fluctuations in her
ranges of motion, largely due to her course of treatment and use
of pain medications, [but] it is clear that [Plaintiff] continues
to suffer from a significantly reduced range of motion to her
cervical spine.”
examination
(Avanesov Decl., ECF No. 49-3, ¶ 22.)
on
November
21,
2018,
Dr.
Avanesov’s
During an
testing
of
Plaintiff’s range of motion in the cervical spine revealed: flexion
of 30 degrees (normal is 50 degrees); extension of 30 degrees
(normal is 60 degrees); right lateral rotation of 40 degrees
(normal is 80 degrees); and left lateral rotation of 45 degrees
(normal is 80 degrees).
(Id. ¶ 15.)
Then, noting Plaintiff’s
pre-existing cervical spine condition, Dr. Avanesov found that
Plaintiff’s C5-6 and C6-7 levels were aggravated and exacerbated
as
a
result
impingements,
encroachments.
Goldberg’s
intermittent
of
the
nerve
(Id.)
opinions,”
accident
root
resulted
impingements,
She
explicitly
noting
conservative
which
that
treatment
in
and
spinal
cord
nerve
root
“disagree[d]
Plaintiff
for
her
was
with
Dr.
receiving
pre-existing
condition, and that Plaintiff’s condition could no longer be
managed with “just conservative treatment” following the accident.
32
(Id. ¶ 21.)
In sum Dr. Avanesov stated that, with a reasonable
degree of medical certainty, Plaintiff’s cervical spine condition
was aggravated and/or exacerbated by the accident, resulting in
“significant permanent total and quantifiable loss of use and
function of her cervical spine.”
over
time
an
accelerated
(Id. ¶ 22.)
degeneration
of
concomitant decreased range of motion.”
observations
visits
to
complained
derive
her
of
from,
office,
neck
and
inter
She also “expect[s]
her
(Id.)
injuries
Dr. Avanesov’s
alia,
several
which
during
Plaintiff
cervical
spine
pain
with
of
Plaintiff’s
consistently
(see,
e.g.,
id.
¶¶ 3-4, 7), the cervical spine surgery she performed on Plaintiff
(id. ¶ 10), and her review of Plaintiff’s medical records and MRIs
from before and after the accident (id. ¶¶ 16-21).
“Viewing the evidence in the light most favorable to the
non-movant, as the Court must do on summary judgment, Plaintiff
has successfully rebutted Defendant’s prima facie case.”
535 F. Supp. 3d at 110.
Comba,
Dr. Avanesov’s opinion reflects a
“‘qualitative assessment of [P]laintiff’s condition’ built upon
‘an objective basis’ that compares her ‘limitations to the normal
function,
purpose,
and
use’”
of
the
cervical
spine.
Id.
(alteration in original) (quoting Yong Qin Luo, 625 F.3d at 777).
Although “[t]here is no set percentage for determining whether a
restricted range of motion establishes a permanent consequential
or
significant
limitation,”
courts
33
have
determined
that
“a
limitation of twenty percent or more is significant for summary
judgment purposes.”
Oz v. Lorowitz, No. 09-CV-5532, 2012 WL
4560460, at *4 (S.D.N.Y. Sept. 30, 2012) (quoting Hodder v. United
States, 328 F. Supp. 2d 335, 356 (E.D.N.Y. 2004)). Here, Plaintiff
has demonstrated, through Dr. Avanesov’s findings, that her range
of motion is limited by more than 20 degrees.
¶ 15.)
her
(See Avanesov Decl.
These limitations described by Dr. Avanesov, coupled with
opinion
Plaintiff’s
that
the
injuries,
accident
which
are
caused
the
permanent
exacerbation
and
of
progressive
in
nature, and will continue to degenerate at an accelerated rate,
are “significant” for summary judgment purposes.
See Kim v.
Stewart, No. 18-CV-2500, 2021 WL 1105564, at *7 (S.D.N.Y. Mar. 23,
2021) (“Dr. Yoo documented on May 9, 2019, more than three years
following
percent
the
to
2015
Kim’s
Accident,
forward
limitations
shoulder
greater
elevation
(143
than
twenty
degrees
in
comparison to 180 degrees) and to external rotation (37 degrees
compared to 90 degrees).
These limitations are ‘significant’ for
purposes of summary judgment, especially in conjunction with Dr.
Yoo’s conclusions that Kim will have permanent right shoulder pain,
increased with motion and activity, and will be prone to developing
degenerative
joint
disease. . . .
Based
on
this
opinion,
in
conjunction with the results of MRI and range of motion studies,
as well as the sworn affidavit of his treating physician, the Court
finds that Kim has demonstrated a genuine issue of material fact
34
whether he suffered a permanent consequential limitation of use of
his
body
organ
or
member.”
(citing
Gonzalez
v.
Butrago,
No.
00-CV-5749, 2001 WL 461009, at *1 (S.D.N.Y. May 1, 2001)) (cleaned
up)); see also Oz, 2012 WL 4560460, at *6 (“The Court finds the
medical evidence submitted by Plaintiff -- both quantitative and
qualitative
--
to
be
credible
and
that
it
amply
supports
Plaintiff’s claim that he has suffered more than a mild or slight
limitation of his cervical spine.
Indeed, the evidence that
Plaintiff has lost a twenty-degree range in motion in his cervical
spine, that his herniated discs are permanent, and that he will
suffer permanent pain as a result of the accident is sufficient
for a jury to conclude that Plaintiff suffers from a permanent
consequential limitation or significant limitation in his cervical
spine.”).
The Court is not persuaded by Defendant’s arguments to
discredit Dr. Avanesov’s findings in an attempt to show that
Plaintiff has failed to raise a material issue of fact.
Reply at 4-6.)
(See Def.
“Defendant[], in effect, ask[s] the Court to make
a credibility determination and disregard certain evidence, but it
is well established that ‘[a]ssessments of credibility and choices
between conflicting versions of events are matters for the jury,
not for the [C]ourt on summary judgment.’”
Kim, 2021 WL 1105564,
at *7 (third alteration in original)(quoting Simpson v. City of
New York, 793 F.3d 259, 265 (2d Cir. 2015)).
35
“Fundamentally, the
fact
that
the
parties
affirmations . . . in
submitted
connection
‘contradicting
with
this
motion
medical
merely
establishes a battle of the experts,’” which “underscores the
conclusion that [Plaintiff] has presented sufficient evidence to
raise a genuine issue of material fact.”
Id. (quoting Klein v.
Goldfarb, No. 03-CV-0874, 2004 WL 551219, at *1 (S.D.N.Y. Mar. 22,
2004)) (cleaned up).
2.
90/180 Category
The last type of “serious injury” defined by Section
5102(d), the “90/180 Category,” “calls for injuries or impairment
to ‘prevent[] the injured person from performing substantially all
of’ the person’s usual and customary daily activities’ for at least
90 days during the first 180 days immediately after the accident.”
Comba, 535 F. Supp. 3d at 110-11 (quoting N.Y. INS. L. § 5102(d)).
Pursuant to the 90/180 Category, “substantially all” is “construed
to mean that the person has been curtailed from performing his
usual
activities
curtailment.”
to
a
great
extent
rather
than
some
slight
Kim, 2021 WL 1105564, at *6 (quoting Licari v.
Eliot, 57 N.Y.2d 230, 236 (N.Y. 1982)).
“A plaintiff’s inability
to work is sufficient alone to make out a prima facie 90/180
Category claim . . . .”
Id. (citing Mercado v. Lee, No. 04-CV-
7166, 2008 WL 4963985, at *5 (S.D.N.Y. Nov. 21, 2008)).
The
Court
agrees
with
Defendant
injuries do not fit within the 90/180 Category.
36
that
Plaintiff’s
Plaintiff missed
no work due to her injuries because the last time Plaintiff worked
was in May 2014, which pre-dates the August 2015 accident.
Turansky-Frances Depo. Tr., ECF No. 45-7, at 13.)
(See
Moreover,
Plaintiff points to no evidence suggesting “she was prevented from
performing any daily activities.”
(emphasis in original).
Comba, 535 F. Supp. 3d at 111
Plaintiff’s general contentions that she
“continues to complain of cervical pain and limitations” which
“affect her everyday life and her ability to function as she did
prior to the accident” (see Pl. Opp’n at 21-22), are “far too
nebulous to pass muster on summary judgment.”
Comba, 535 F. Supp.
3d at 111.
Although Plaintiff does not elaborate as to how her daily
activities have been affected as a result of the accident in her
opposition, the Court notes that, during her deposition, Plaintiff
testified that her daily activities prior to the accident consisted
of “getting her [daughter] to school[,] . . . a lot of driving
around,
running
around,
cooking,
cleaning,
[and]
laundry
in
between shopping. (Turansky-Frances Depo. Tr. at 16.) Then, after
the accident, Plaintiff stated that she has difficulty bathing
herself and is unable to lift her arms over her head.
(Id. at 84.)
She is able to get in and out of bed, “carefully” go up and down
stairs, drive her car, help her daughter with activities, and
grocery shop “with assistance.” (Id. at 85.)
When she shops,
Plaintiff now drops bags and is unable to “get big loads like [she]
37
used to.”
(Id.)
As to housework, Plaintiff needs help cleaning,
cannot reach comfortably, is unable to garden, and cannot cook
with big heavy pans anymore.
(Id. at 86.)
She also has difficulty
sleeping and needs “to have a certain amount of pillows arranged
just right.”
Plaintiff’s
judgment
as
(Id. at 87-88.)
However, this slight curtailment of
usual activities is insufficient to overcome summary
to
a
“serious
injury”
premised
upon
the
90/180
Category.
C.
Causation
“As a final hurdle,” a plaintiff must demonstrate that
her “serious injury” was proximately caused by the accident at
issue.
Comba, 535 F. Supp. 3d at 111 (citing Carter v. Full Serv.,
Inc., 815 N.Y.S.2d 41, 43 (N.Y. App. Div. 1st Dep’t 2006)).
defendant
bears
the
initial
burden
on
this
issue
and
The
must
demonstrate “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.”
Pommells v. Perez, 4 N.Y.3d 566, 572 (N.Y. 2005).
The burden then shifts to the plaintiff “‘to come forward with
evidence addressing the defendant’s claimed lack of causation; if
the plaintiff fails to meet that burden, the defendant is entitled’
to summary judgment.”
Comba, 535 F. Supp. 3d at 111 (quoting
Arenes v. Mercedes Benz Credit Corp., 2006 WL 1517756, at *8
(E.D.N.Y. June 1, 2006)).
38
The fact that Plaintiff had pre-existing conditions,
such as a degenerative disc disease, does not preclude a finding
that
the
accident
caused
her
a
exacerbation of those conditions.
serious
injury
through
the
See Burzynski v. United States,
No. 13-CV-766S, 2016 WL 6298513, at *7 (W.D.N.Y. Oct. 27, 2016)
(“And
even
if
Plaintiff
had
some
amount
of
pre-existing
degenerative disc disease, that alone is not sufficient to show
that
there
is
no
causal
link
between
the
collision
and
an
exacerbation of Plaintiff’s condition.”); see also Nasrallah v.
Helio De, No. 96-CV-8727, 1998 WL 152568, at *8 (S.D.N.Y. Apr. 2,
1998) (“[T]he fact that Mr. Nasrallah already had degenerative
disc disease does not prevent an accident from causing serious
injury by aggravating this condition.”) (Sotomayor, J.).
Based upon the Court’s review of the record, and as set
forth
above,
both
Plaintiff’s
expert,
Dr.
Avanesov,
and
Defendant’s expert, Dr. Goldberg, rely on the same evidence to
reach opposite conclusions as to the seriousness of Plaintiff’s
injuries and whether those injuries were proximately caused by the
underlying accident.
To resolve this battle of the experts would
exceed the Court’s role at the summary judgment stage where it “is
to identify issues of material fact, not to resolve them.”
Chase
v. Allawi, No. 07-CV-0096, 2010 WL 1133333, at *6 (W.D.N.Y. Mar.
23, 2010).
Accordingly, these material issues of fact are to be
tried by a jury.
39
CONCLUSION
For
the
stated
reasons,
IT
IS
HEREBY
ORDERED
that
Plaintiff’s motion for summary judgment (ECF No. 45) is GRANTED as
to the issue of liability.
Defendant’s cross-motion for summary
judgment (ECF No. 42) is GRANTED to the extent Plaintiff’s injuries
do
not
satisfy
respects.
the
90/180
Category
and
DENIED
in
all
other
The parties are directed to submit a proposed joint
pre-trial order to Magistrate Judge Arlene R. Lindsay within thirty
(30) days of the date of this Memorandum & Order.
SO ORDERED.
/s/_JOANNA SEYBERT _____
Joanna Seybert, U.S.D.J.
Dated: March 31, 2022
Central Islip, New York
40
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