Satterfield v. Maldonado et al

Filing 73

MEMORANDUM AND ORDER granting (53) Motion for Summary Judgment; granting (62) Motion for Summary Judgment in case 1:14-cv-00627-JCF; granting (25) Motion for Summary Judgment in case 1:14-cv-03374-JCF: For the reasons set forth above, the Linden defendants' motion for summary judgment (Dkt. No. 53) and Mr. Satterfield's cross motion (Dkt. No. 62) are granted. Counsel shall submit a joint pretrial order with respect to Mr. Satterfield's claims by September 30, 2015.. (Signed by Magistrate Judge James C. Francis on 8/31/2015) Filed In Associated Cases: 1:14-cv-00627-JCF, 1:14-cv-03374-JCF Copies Transmitted By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
KENNETH SATTERFIELD,
:
:
Plaintiff,
:
:
- against :
:
JESUS M. MALDONADO and LINDEN
:
YELLOW CAB INC.,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
PAUL VANEDEN,
:
:
Plaintiff,
:
:
- against :
:
LINDEN YELLOW CAB, INC., JESUS
:
M. MALDONADO, ESTATE OF ELMA
:
SATTERFIELD, AND KENNETH
:
SATTERFIELD,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

14 Civ. 0627 (JCF)
14 Civ. 3374 (JCF)
MEMORANDUM
AND ORDER

This is a personal injury action arising out of a motor
vehicle accident and is before this Court on the basis of diversity
jurisdiction. Defendants Jesus M. Maldonado and Linden Yellow Cab,
Inc. (the “Linden defendants”) now move for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure, and
seek

dismissal

of

plaintiff

Paul

Vaneden’s1

complaint

with

prejudice, on the grounds that Mr. Vaneden failed to sustain a
“serious injury” as required by New York’s Comprehensive Motor
Vehicle Insurance Reparations Act, N.Y. Ins. Law §§ 5101 et. seq.
1

I refer to Mr. Vaneden as the plaintiff here as only his
claims are at issue in the pending motion and cross-motion for
summary judgment.
1

(the “No-Fault Law”).

Kenneth Satterfield has cross-moved for

summary judgment against the plaintiff on the same grounds.

The

parties have consented to my jurisdiction for all purposes in
accordance with 28 U.S.C. § 636(c).

For the reasons that follow,

the motions are granted.
Background
A. Facts
On March 1, 2012, Mr. Vaneden was a passenger in the front
seat of Mr. Satterfield’s vehicle when an accident occurred at
around 8 p.m.

(Deposition of Paul Vaneden dated Jan. 9, 2015

(“Vaneden Dep.”), attached as Exh. S to Declaration of Lindsay J.
Kalick dated June 15, 2015 (“Kalick Decl.”), at 5, 21-22).2

Mr.

Vaneden and Mr. Satterfield were traveling north on Randall Avenue
in the Bronx when a yellow cab hit the front driver’s side of their
vehicle.

(Vaneden Dep. at 28, 37-38).

The plaintiff alleges that

Mr. Maldonado was driving the cab in question with the knowledge
and consent of Linden Yellow Cab, Inc., the owner of the vehicle.
(Amended

Verified

Complaint

(“Am.

Compl.”),

¶¶

8-10).

Mr.

Vaneden’s claim of having sustained a serious injury appears to
revolve around continuing pain in his right knee, neck, and back,
which “occur[s] most of the time,” and related injuries, which he
has been advised “are permanent in nature.”
Vaneden

(Affidavit of Paul

dated July 10, 2015 (“Vaneden Aff.”), attached as Exh. I

to Declaration of Neil R. Kafko dated July 14, 2015 (“Kafko

2

Unless otherwise indicated, citations to the record are to
the docket in Satterfield v. Maldonado, No. 14 Civ. 0627.
2

Decl.”), at 2).
Mr. Vaneden testified in his deposition that after impact with
the cab, his right leg “kind of twisted and hit the dashboard or
the glove compartment” of Mr. Satterfield’s vehicle and that he was
“shaken up” but “semi-conscious.”

(Vaneden Dep. at 39).

Both he

and Mr. Satterfield were removed from the car by onlookers, after
which an ambulance and the police arrived at the scene of the
accident.

(Vaneden Dep. at 40, 49).

Mr. Vaneden told the

paramedics that he “felt pain in his right knee, neck and back.”
(Defendants’ Local Rule 56.1 Statement of Undisputed Fact (“Def.
56.1”), ¶ 3).

He was given a neck brace, placed on a stretcher,

and taken by ambulance to Jacobi Hospital, where he received a CAT
scan of his head.

(Vaneden Aff. at 1; Def. 56.1, ¶ 3; Report of

Gerald F. Gaughan, M.D., dated June 17, 2015 (“Gaughan 6/17/15
Report”), attached as part of Exh. E to Kafko Decl., at 1).
released later that evening.

He was

(Def. 56.1, ¶ 3).

Although Mr. Vaneden was unsure of the next time he sought
medical treatment following the accident, records indicate that he
began a course of physical therapy in March or April of 2012.
(Plaintiff’s Response to Defendants’ Local Rule 56.1 Statement of
Undisputed Facts (“Pl. 56.1”), ¶ 4; Gaughan 6/17/15 Report at 1).
The plaintiff continued physical therapy with Dr. Gerald Gaughan
for a number of months; he testified that he did so for “about a
year or so” but the records submitted indicate that his last
appointment was in October 2012.

(Vaneden Dep. at 58-59, 73-74;

Pl. 56.1, ¶ 5; Followup Evaluation of Paul Vaneden dated October
3

18, 2012 (“Gaughan 10/18/12 Report”), attached as part of Exh. E to
Kafko Decl., at 4).
motion

exercises,

His treatment included massage, range of
electrical

stimulation,

and

chiropractic

treatment for his right knee, neck, and back. (Vaneden Dep. at 59;
Pl. 56.1, ¶ 5). Mr. Vaneden had magnetic resonance imaging (“MRI”)
of his right knee and lumbar spine in August 2012, which found,
among other things, tears above the medial and lateral meniscus of
his right knee.

(Affirmed MRI Report of Narayan Paruchuri, M.D.

(“Paruchuri MRI Report”), attached as Exh. F to Kafko Decl., at 3;
Affirmed MRI Report of Ronald Wagner, M.D. (“Wagner MRI Report”),
attached as Exh. G to Kafko Decl.).
In

March

2014,

Chris

Moros,

D.O.,

arthroscopic surgery on Mr. Vaneden.

performed

right

knee

(Pl. 56.1, ¶ 6; Affirmed

Reports of Chris Moros, D.O. (“Moros Report”), attached as Exh. H
to Kafko Decl., at 2).

The plaintiff was discharged after the

surgery, but subsequently used a cane for a few weeks and then
transitioned

to

approximately

using

twice

a

per

brace,
month.

which

he

continues

(Vaneden

Dep.

at

to

wear

66-68).

Following the surgery, Mr. Vaneden saw Dr. Moros for physical
therapy and continues to see him for monthly evaluations.
Report

at

2;

Vaneden

Dep.

at

68).

He

also

(Moros

received

a

corticosteroid injection in his right knee in May 2014 for postoperative discomfort and persistent pain.

(Moros Report at 2).

Dr. Moros told the plaintiff that an MRI performed after the
surgery “did not find any further tearing or problems in his right
knee.”

(Def. 56.1, ¶ 8).

As of July 14th, the plaintiff had not
4

attended physical therapy for his right knee in 2015.

(Pl. 56.1,

¶ 9).
In June 2014, Mr. Vaneden began experiencing pain in his left
knee, where he had undergone anterior cruciate ligament (“ACL”)
surgery in 2007.

(Moros Report at 2; Vaneden Dep. at 12-13).

After an MRI of the plaintiff’s left knee in October 2014, Dr.
Moros told him that the knee was “torn,” which often happens a
number of years after ACL surgery.
56.1, ¶ 7).
procedure

and

(Vaneden Dep. at 70-71; Pl.

Mr. Vaneden elected to not have another surgical
was

prescribed

continued

physical

therapy

and

bracing. (Moros Report at 2; Vaneden Dep. at 70-71). He continues
to experience periodic “stabbing pain” in his right knee and pain
in his neck and lower back, for which he takes Vicodin.3

(Vaneden

Dep. at 76-77, 79-80).
The plaintiff testified that in an automobile accident in
2007, he injured his back and left knee, and required ACL surgery
as a result.

(Vaneden Dep. at 12-13, 16).

In 2012, he was

involved in an altercation with the police, during which he “was
thrown on the floor and kind of roughed up and stepped on in [his]
stomach area.”

(Vaneden Dep. at 78; Def. 56.1, ¶ 12).

3

Mr. Vaneden

The plaintiff testified in his deposition and stated in his
affidavit that Dr. Gaughan still prescribes Vicodin for him
(Vaneden Dep. at 80; Vaneden Aff. at 2); however, as noted below,
Dr. Gaughan does not mention prescribing any medications in his
report from June 2015 (Gaughan 6/17/15 Report at 1-2). From the
records submitted by the plaintiff detailing his treatment with Dr.
Gaughan (all of which are unaffirmed, with the exception of the
6/17/15 Report, see infra note 5), it appears that the time last
time Dr. Gaughan prescribed Vicodin was October 18, 2012. (Gaughan
10/18/12 Report at 4).
5

was also involved in a motor vehicle accident in March 2013, in
which he rear-ended another car. (Vaneden Dep. at 90). During the
two years that elapsed between the subject accident and Mr.
Vaneden’s surgery, he testified that he was looking for a surgeon
who would accept Medicaid insurance coverage for the procedure, as
his no-fault insurance benefits terminated at some point in 2012 or
2013.

(Memorandum of Law in Opposition to Linden Defendants’

Motion

and

Satterfield

Defendants’

Cross-Motion

for

Summary

Judgment Against Vaneden Pursuant to FRCP 56 (“Pl. Opp. Memo.”) at
2, 13; Vaneden Dep. at 62-63; Vaneden Aff. at 1).
Mr. Vaneden is 53 years old.

He was not working at the time

of the March 2012 accident and has not been employed since.
(Vaneden Dep. at 8-9).

Before the accident, his daily routine

consisted of “[n]othing really,” and he spent most of his time at
home or visiting a friend.
10).

(Vaneden Dep. at 91-92; Pl. 56.1, ¶

The plaintiff testified that because of the injuries he

sustained

in

the

2012

accident,

he

can

no

longer

basketball, enjoy dancing, or “walk for too long.”
at 86, 88-89).

run,

play

(Vaneden Dep.

He also “walk[s] with a limp”; he stated that the

accident has “made [his] life incredibly more difficult.” (Vaneden
Aff. at 2).
B. Medical Reports
1. Ronald P. Grelsamer, M.D.
The

Linden

defendants’

expert

orthopedic

surgeon,

Dr.

Grelsamer, conducted a review of Mr. Vaneden’s medical records and
examined him with respect to his right knee in January 2015. (Def.
6

56.1, ¶ 13; Affirmed Letter of Ronald Grelsamer, M.D., dated Jan.
28, 2015 (“Grelsamer Report”), attached as part of Exh. T to Kalick
Decl., at 1, 4; Affirmed Addendum by Ronald Grelsamer, M.D., dated
March 9, 2015 (“Grelsamer Addendum”), attached as part of Exh. T to
Kalick Decl., at 1). Dr. Grelsamer conducted range of motion tests
with a protractor on the plaintiff’s knees and found a range of “10
to 110 degrees on the right versus 0 to 115 degrees on the left”;
he noted that a normal range is 0 to 130 degrees or more.
(Grelsamer

Report

at

4).

Upon

examination,

Mr.

Vaneden

demonstrated a “negative Ober sign on the left and a moderately
positive Ober sign on the right, indicating a tight ilio-tibial
band.”

(Grelsamer Report at 4).

He was tender around the knee at

the joint line and had “nonspecific pain with meniscal maneuvers.”
(Grelsamer Report at 4-5). The knee was stable to varus and valgus
tests and there was no effusion, increased redness or masses, no
skin sensitivity, and no atrophy as measured ten centimeters above
the patella.

(Grelsamer Report at 4-5).

During the examination,

the plaintiff described pain “at the medial aspect” of his right
knee that was brought on by walking for 15 minutes or bending; he
did not cite any issues with his left knee.
4).

(Grelsamer Report at

He displayed no acute distress while sitting, standing, and

walking, but had a “careful gait.”

(Grelsamer Report at 4).

Dr. Grelsamer also reviewed imaging studies of Mr. Vaneden’s
knees post-dating the subject accident.

Although many of the

images were so grainy as to be “non-diagnostic,” Dr. Grelsamer
noted that a right knee MRI from October 2014 showed the existence
7

of a “small bone spur” at the lateral aspect of the trochlea and
the patella and “non-specific signal changes in the posterior horn
of the medial meniscus.” (Grelsamer Report at 3). MRI pictures of
the same knee from August 2012 demonstrated a moderate effusion and
some arthritic changes, as well as signal changes to the meniscus,
which also had “multiple focal small lucencies consistent with a
degenerative process.”
at 6).

(Grelsamer Addendum at 1; Grelsamer Report

Dr. Grelsamer concluded that the August 2012 MRI had no

features suggesting trauma and that all the aberrational findings
were “common” in an adult male of Mr. Vaneden’s age.

(Grelsamer

Addendum at 1-2).
In discussing the potential relationship of the plaintiff’s
symptoms and the subject accident, Dr. Grelsamer observed that most
meniscal tears result from “wear and tear” and that “a belted
passenger in a motor vehicle cannot sustain a tear of the meniscus
from

hitting

compartment.”

the

knee

against

any

(Grelsamer Report at 5).

part

of

the

passenger

He further opined that a

finding of “intermediate grade chondromalacia” –- as noted by the
radiologist who conducted Mr. Vaneden’s August 2012 right knee MRI
–- would indicate “a pre-arthritic condition” unrelated to an
accident, and would “not be unusual in a middle-aged man who played
basketball.”

(Grelsamer Report at 5).

8

2. Mitchell S. Raps, M.D.4
Dr. Raps, the Linden defendants’ expert neurologist, performed
a neurologic examination of the plaintiff in April 2015, and
reviewed his medical records with respect to his neck and back.
(Def. 56.1, ¶ 14; Letter of Mitchell S. Raps, M.D., dated April 17,
2015 (“Raps Report”), attached as Exh. U to Kalick Decl., at 1).
Dr. Raps found that Mr. Vaneden’s reported sensory symptoms were
“simply non-physiologic” because he reported normal vibration sense
throughout his right lower extremity and had intact position sense
in his right toes; however, he noted that the plaintiff reported
decreased intensity to pinprick sensation on his right leg.

(Raps

Report at 9).
The plaintiff presented a reduced range of motion in his

4

Dr. Raps did not properly affirm his report, as it is not
sworn under penalty of perjury or notarized. See Evans v. United
States, 978 F. Supp. 2d 148, 168 (E.D.N.Y. 2013) (“Uncertified
medical records and unsworn letters or reports are of no probative
value.” (quoting Parmisani v. Grasso, 218 A.D.2d 870, 872, 629
N.Y.S.2d 865, 866 (3d Dep’t 1995))); Jimenez v. Gubinski, No. 09
Civ. 5645, 2012 WL 279432, at *8 (S.D.N.Y. Jan. 30, 2012) (citing
28 U.S.C. § 1746) (matters may be proved through written statement
which is subscribed to be true under penalty of perjury and dated).
Although the plaintiff has not raised this issue, because the
defendants seek to exclude unaffirmed submissions by the plaintiff
on inadmissibility grounds, see infra note 5, I address the impact
of Dr. Raps’ report on the defendants’ evidence out of fairness.
Because the defendants meet their prima facie burden of showing the
Mr. Vaneden did not sustain a serious injury without the evidence
from Dr. Coyne, there is no need to exclude his report. See, e.g.
Graves v. L&N Car Service, 87 A.D.3d 878, 879, 931 N.Y.S.2d 550,
550-51 (1st Dep’t 2011) (defendants established prima facie case
through radiologist’s affidavit finding no causal connection
between plaintiff’s injuries and accident based on examination of
plaintiff’s MRIs); Bent v. Jackson, 15 A.D.3d 46, 47, 788 N.Y.S.2d
56, 57-58 (1st Dep’t 2005); Shaw v. Looking Glass Associates, LP,
8 A.D.3d 100, 101-03, 779 N.Y.S.2d 7, 9-10 (1st Dep’t 2004).
9

cervical spine, neck, and waist. (Raps Report at 9). However, Mr.
Vaneden did not complain of spine tenderness when palpated.
Report at 9).

(Raps

Dr. Raps concluded that Mr. Vaneden presented a

highly significant reduction in extension, a moderate reduction in
bilateral lateral rotation, and a mild degree of reduction to neck
flexion, but noted that the mechanical evaluation of range of
motion was “entirely subjective in nature.” (Raps Report at 9-10).
Dr. Raps further noted that the plaintiff’s reported ability to
climb two flights of stairs to his house and operate a vehicle was
“not consistent with an individual who said he was experiencing
significant low back pain.”

(Raps Report at 10).

Although Dr. Raps believed Mr. Vaneden’s gait to be at times
“exaggerated,” he found that some degree of antalgia was present.
(Raps

Report

at

8-9).

He

formed

this

belief

based

on

his

observation that the plaintiff’s gait as he exited Dr. Raps’ office
was “considerably less antalgic” than the gait presented during the
exam.

(Raps Report at 9).

“capable of working.”

Dr. Raps opined that Mr. Vaneden was

(Raps Report at 10).

Finally, Dr. Raps

concluded that he saw “no evidence of a neurological disturbance as
related to [the subject] accident.”

(Raps Report at 10).

3. Scott S. Coyne, M.D.
The Linden defendants’ expert radiologist, Dr. Coyne, reviewed
a number of radiology examinations of Mr. Vaneden’s spine and
knees.

(Def. 56.1, ¶ 15; Affirmed Letter of Scott S. Coyne, M.D.,

dated Feb. 27, 2015 (“Coyne Report”), attached as Exh. V to Kalick
Decl., at 1).

A July 5, 2012 MRI of the plaintiff’s cervical spine
10

showed

“multilevel

degenerative

disc

changes”

and

“mild

degenerative narrowing of the C6-7 neural foramina.” (Coyne Report
at 1).
knee

Dr. Coyne’s review of the plaintiff’s August 2012 right

MRI

showed

tricompartmental

degenerative

osteoarthritic

changes, “extensive degenerative attenuation of the substance of
the medial meniscus,” and joint effusion. (Coyne Report at 2). An
MRI of Mr. Vaneden’s lumbosacral spine from August 2012 showed
moderately advanced degenerative facet joint changes, advanced
degenerative disc changes, and degenerative narrowing of the neural
foramina at L4-5.

(Coyne Report at 2).

Dr. Coyne noted that there

was no evidence of focal disc herniation, significant central
spinal stenosis, compression, or displacement of the cauda equina
at any level.

(Coyne Report at 2).

After reviewing an x-ray of the plaintiff’s left knee from
June 2014, Dr. Coyne found advanced degenerative osteoarthritic
changes, and no evidence of acute osseous trauma or joint effusion.
(Coyne Report at 2).

An x-ray of Mr. Vaneden’s right knee from the

same date also showed advanced degenerative osteoarthritic changes,
unremarkable soft tissues and no joint effusion.

(Coyne Report at

3).
A

left

knee

reconstruction,

MRI

from

advanced

October

2014

degnerative

showed

joint

prior

changes,

ACL
and

degenerative change of the posterior horn of the medial meniscus,
but no fracture, dislocation, or contusion.

(Coyne Report at 3).

Dr. Coyne found that a right knee MRI from October 2014, when
compared to the right knee MRI from August 2012 (both of which were
11

also reviewed by Dr. Grelsamer), continued to show tricompartmental
degenerative osteoarthritic changes, degenerative attenuation of
the posterior horn of the medial meniscus, and mild degenerative
splaying of the medial collateral ligament.

(Coyne Report at 3).

There was no evidence of a medial or lateral meniscus traumatic
tear, and the joint effusion had “resorbed.”
Dr.

Coyne’s

overall

impression

was

(Coyne Report at 3).
that

the

radiology

examinations of Mr. Vaneden’s left and right knee demonstrated
“advanced degenerative joint changes” and “pronounced degenerative
changes of the medial menisci.”

(Coyne Report at 3).

He found

that the cervical and lumbosacral spine MRIs showed degenerative
disc and facet joint changes and no evidence of acute traumatic
injury.

(Coyne Report at 3).

Additionally, Dr. Coyne observed

that all of the degenerative changes of the plaintiff’s spine and
knees were “certainly chronic, long-standing, pre-existent and not
causally related to the March 1, 2012 incident,” and that none of
the x-rays or MRIs he reviewed showed any “osseous or soft tissue
abnormality or other trauma causally related” to the accident.
(Coyne Report at 4).
4. Jacobi Hospital Records from March 1, 2012
The plaintiff submitted a copy of his records from Jacobi
Medical Center regarding his emergency room treatment on March 1,
2012; however, they are not accompanied by a doctor’s affirmation.
(Treatment Notes of Paul Vaneden dated March 1, 2012 (“Jacobi
Records”), attached as Exh. D to Kafko Decl.).

From the face of

the records, it appears that a scan of Mr. Vaneden’s right knee was
12

taken

at

Jacobi,

and

showed

possible

“suprapatellar

distention” and “no visible fracture or dislocation.”
Records at 12).

(Jacobi

A CAT scan of his head indicated “unremarkable”

soft tissues and osseous structures, and
findings.”

bursal

(Jacobi

Records

at

13-14).

“[n]o definitive acute
A

CAT

scan

of

the

plaintiff’s cervical spine also taken at Jacobi also revealed
unremarkable prevertebral soft tissues and no evidence of fracture
or subluxation.

(Jacobi Records at 15).

5. Gerald F. Gaughan, M.D.5
The plaintiff identifies Dr. Gaughan as his “initial treating
physician.”

(Pl. 56.1, ¶ 13).

While Dr. Gaughan noted in his

affirmed letter that Mr. Vaneden began a course of physical therapy
at GFG Medical, where Dr. Gaughan works, on March 28, 2012 (Gaughan
6/17/15 Report at 1), the earliest treatment note submitted by the

5

The plaintiff includes in his submission a number of
unaffirmed medical evaluations from Dr. Gaughan, dating from June
21, 2012, to October 18, 2012, as well as a number of treatment
records dating from April 18, 2012, to October 8, 2012 (Followup
Evaluations and Progress Notes, attached as part of Exh. E to Kafko
Decl. at 3-33). As the defendants argue (Reply Memorandum of Law
in Further Support of the Linden Defendants’ Motion for Summary
Judgment against Paul Vaneden (“Linden Reply”) at 3), because these
reports are not affirmed, they are not competent evidence. See
supra note 4; Thomas v. O’Brien, No. 08 CV 3250, 2010 WL 785999, at
*7 (E.D.N.Y. Feb. 26, 2010) (finding that while defendant may
satisfy initial burden with unsworn reports by plaintiff’s
physician, plaintiff can only defeat defense motion with sworn
affidavits or affirmations substantiating claim of serious injury).
Nevertheless, for the sake of completeness, I consider all the
submitted records and find that they do not make an appreciable
difference to the strength of Mr. Vaneden’s objective medical
evidence. In other words, the defendants are not prejudiced by
inclusion of Dr. Gaughan’s unaffirmed reports as the reports are
not determinative on the issue of whether the plaintiff sustained
a serious injury.
13

plaintiff

is

dated

April

18,

2012

(Physical

Therapy

Initial

Evaluation dated April 18, 2012, attached as part of Exh. E to
Kafko Decl., at 9).

Dr. Gaughan further noted that an MRI of Mr.

Vaneden’s right knee showed “medial and lateral meniscus tears,
chondromalacia and effusion,” but failed to specify which MRI he
was referencing.

(Gaughan 6/17/15 Report at 1).

As of June 2015,

the plaintiff still reported neck pain, spasm, and limitation; back
pain radiating to the right thigh and associated right thigh
numbness; exacerbation of his previous lumbar condition; pain,
limitation, and weakness at the right knee; and joint swelling.
(Gaughan 6/17/15 Report at 1).

As a result, he reported being

limited in his ability to continuously sit, stand, walk, climb
stairs, bend, and lift.

(Gaughan 6/17/15 Report at 1).

Dr.

Gaughan also stated that Mr. Vaneden “still uses Vicodin and
Flexeril PRN for pain and spasm” but did not identify who, if
anyone,

had

recently

prescribed

those

medications.

(Gaughan

6/17/15 Report at 1).
After conducting a physical exam, Dr. Gaughan found that the
plaintiff “ambulates with an antalgic gait pattern” favoring his
right leg, and noted tenderness and spasm over his cervical
paraspinal muscles and tenderness over the medial aspect of the
right knee joint.

(Gaughan 6/17/15 Report at 1).

Range of motion

measurements, which were “obtained visually,” indicated that Mr.
Vaneden had decreased mobility in his neck, trunk, and right knee
as demonstrated by constricted flexion, extension, rotation, and

14

lateral bending.6

(Gaughan 6/17/15 Report at 1-2).

Dr. Gaughan

also noted “crepitus and clicking” in both knees. (Gaughan 6/17/15
Report

at

2).

A

sensory

exam

was

“notable

for

decreased

sensibility to vibration along the medial aspect of the right
foreleg and foot.”

(Gaughan 6/17/15 Report at 2).

Dr. Gaughan’s

evaluations from June, July, and October 2012 also show the
plaintiff to have a significantly decreased range of mobility in
his neck and trunk, although his neck flexion, extension, and
rotation showed improved mobility between June and October; the
right knee range remained between 0 and 130 degrees throughout.
(Gaughan 10/18/12 Report at 4; Followup Evaluation of Paul Vaneden
dated July 26, 2012 (“Gaughan 7/26/12 Report”), attached as part of
Exh. E to Kafko Decl., at 5; Physiatric Evaluation of Paul Vaneden
dated June 21, 2012 (“Gaughan 6/21/12 Report”), attached as part of
Exh. E to Kafko Decl., at 7).
Dr. Gaughan’s overall assessment was that Mr. Vaneden suffered
from back pain and right thigh numbness due to radiculopathy, right
knee medial and lateral meniscus tears, neck pain, and cervical
6

Mr. Vaneden’s neck flexion was 35 degrees (Dr. Gaughan noted
that 50 degrees is normal), extension was 40 degrees (60 degrees is
normal), neck rotation to the right was 30 degrees and to the left
was 45 degrees (normal rotation bilaterally is 90 degrees), and
lateral bending to the right and left was 25 degrees (40 degrees is
normal). (Gaughan 6/17/15 Report at 1). Dr. Gaughan found that
trunk flexion was 45 degrees (100 degrees is normal), extension was
10 degrees (30 degrees is normal), lateral bending to the left was
30 degrees and to the right was 20 degrees (40 degrees is normal),
and rotation to left and right was 40 degrees (no information was
provided about the normal range of motion for trunk rotation).
(Gaughan 6/17/15 Report at 2).
The range of motion for the
plaintiff’s right knee was 5 to 125 degrees and for the left knee
was 0 to 130 degrees (normal knee flexion is 0 to 150 degrees).
(Gaughan 6/17/15 Report at 2).
15

disc bulges. (Gaughan 6/17/15 Report at 2). He concluded that the
above-mentioned conditions were “within a reasonable degree of
medical certainty [] the result of injuries which were sustained”
in the March 1, 2012 accident.

(Gaughan 6/17/15 Report at 2).

Dr.

Gaughan opined that as a result of the accident, the plaintiff had
permanent limitations in the mobility of his neck, back, and right
knee,

and

permanent

partial

loss

of

use

in

the

same

areas.

(Gaughan 6/17/15 Report at 2).
6. Narayan Paruchuri, M.D.
Dr.

Paruchuri,

a

radiologist,

performed

an

MRI

of

the

plaintiff’s right knee in August 2012 due to his knee pain.
(Paruchuri MRI Report at 1-2).

He found “a full thickness radial

tear of the posterior medial meniscal root,” a “horizontal partial
thickness undersurface tear of the posterior horn of the medial
meniscus measuring 10 mm in length,” and “a horizontal undersurface
tear of the anterior horn of the lateral meniscus.” (Paruchuri MRI
Report at 2).

Findings also included “extensive chondromalacia in

the medial compartment” and large joint effusion.

(Paruchuri MRI

Report at 3).
7. Ronald Wagner, M.D.
Dr. Wagner, also a radiologist, conducted an MRI of Mr.
Vaneden’s lumbar spine in August 2012.

(Wagner MRI Report at 1).

He noted the plaintiff’s history of back and leg pain. (Wagner MRI
Report at 2). Findings included disc bulges flattening the ventral
thecal sac at T11/12 and L3/4, a broad disc herniation impressing
the ventral and ventrolateral thecal sac at L4/5, and a broad
16

subligamentous disc herniation impressing the ventral epidural
space at L5/S1.

(Pl. 56.1, ¶ 17; Wagner MRI Report at 2).

8. Chris Moros, D.O.
Dr. Moros performed arthroscopic surgery on the plaintiff’s
right knee on March 27, 2014, and affirmed in July 2015 that he
continues to provide care to Mr. Vaneden.
Moros Report at 1-2).

(Pl. 56.1, ¶¶ 13, 15;

When Mr. Vaneden first presented to Dr.

Moros on February 7, 2014, he complained of “persistent right knee
pain;” the pre-operative diagnosis was a right knee medial meniscus
tear.

(Moros Report at 4, 9).

After reviewing an MRI from August

2012, Dr. Moros assessed a right knee sprain with medial and
lateral meniscus tears and chondromalcia.

(Moros Report at 9).

However, the operative report dated March 27, 2014, observed only
a tear at the medial meniscus, not the lateral meniscus, and
described the arthroscopic procedure as involving “a partial medial
meniscetomy” and “a partial synovectomy.”7

(Moros Report at 4).

Dr. Moros noted that an MRI from October 2014, taken because
of the plaintiff’s left knee pain, showed a medial meniscal tear,
previous ACL reconstruction, and “no visualization suggesting [] a
recurrent tearing and degenerative tearing.”

(Moros Report at 2).

During a physical exam on June 26, 2015, Dr. Moros found that Mr.

7

Dr. Moros’ June 26, 2015 “[n]arrative [r]eport” describing
the plaintiff’s March 2014 surgery appears to be at odds with his
operative report from March 27, 2014; in the June 2015 report, he
wrote that the right knee arthroscopy involved “a partial medial
and lateral meniscetomy partial as well as shaved chondroplasty,”
while in the March 2014 operative report the only mention of the
lateral meniscus was to note that it was not torn. (Moros Report
at 2, 4).
17

Vaneden was experiencing mild discomfort and medial joint line
tenderness of his right knee; he assessed a medial meniscus tear
with synovitis and noted that the injury was “prone to degenerative
changes.”

(Moros Report at 3).

Dr. Moros concluded that “with a

reasonable degree of medical certainty the right knee injury is
causally connected” to the March 1, 2012 accident and that the
“limitations are permanent.”

(Moros Report at 3).

9. Mitchell M. Zeren, D.C.8
Following the car accident in 2007, Mr. Vaneden saw Dr. Zeren
for a number of chiropractic treatments due to his “severe neck and
back pain.”

(Def. 56.1, ¶ 16; Vaneden Dep. at 15; Initial

Chiropractic Evaluation by Mitchell M. Zeren, D.C., dated Aug. 30,
2007 (“Zeren Report”), attached as part of Exh. W to Kalick Decl.,
at 1; Concourse Chiropractic Treatment Records dated Jan. 29, 2015
(“Chiropractic Records”), attached as part of Exh. W to Kalick
Decl., at 1-2). At their first meeting, Mr. Vaneden told Dr. Zeren
that he was involved in a car accident on August 28, 2007, in which
he struck the left side of his body and head on the car door and
dashboard and briefly lost consciousness; he was transported by
ambulance to Jacobi Hospital and was in and out of consciousness.
(Zeren

Report

at

1).

Upon

examination,

8

the

plaintiff

was

The defendants have submitted records from the plaintiff’s
treatment with Dr. Zeren in support of their motion; although Dr.
Zeren’s report and treatment notes are unsworn, they are properly
before the Court as they are “reports by the plaintiff’s
physicians” submitted by the defendant. Evans, 978 F. Supp. 2d at
163; see also Ebewo v. Martinez, 309 F. Supp. 2d 600, 604 (S.D.N.Y.
2004).
18

experiencing numbness radiating into his shoulders and arms, and
deep left knee and left shoulder pain.

(Zeren Report at 1).

He

also told Dr. Zeren that he injured his left knee in a “sport
accident” in 2005.
tenderness

to

(Zeren Report at 1).

palpation

of

Mr.

Dr. Zeren noted severe

Vaneden’s

spinal

joints

and

inflammatory changes throughout the cervical spine as well as the
thoracic and lumbar spine.

(Zeren Report at 1).

Range of motion

tests revealed a constricted range of motion of the cervical and
lumbar spine in terms of flexion, extension, left and right
rotation, and left and right lateral flexion.9

(Zeren Report at 1-

2).
Dr. Zeren concluded that the plaintiff had cervical and lumbar
spine derangement, traumatic myalgia and myofasciitis, traumatic
vertebral

subluxation

complex,

traumatic

injury

to

the

left

shoulder and left knee, and closed head injury with post-traumatic
headaches. (Zeren Report at 2). He further noted that Mr. Vaneden
was “totally disabled” and recommended rest and restriction of his
activities.

(Zeren Report at 2).

Dr. Zeren’s treatment records

show that the plaintiff had over 30 appointments for chiropractic
and

spinal

manipulation

between

September

and

December

2007.

(Chiropractic Records at 1-2).
9

Dr. Zeren found that the range of motion of Mr. Vaneden’s
cervical spine showed 30 degrees flexion (he noted 60 degrees is
normal), 30 degrees extension (50 degrees is normal), 45 degrees
left rotation and 55 degrees right rotation (80 degrees is normal),
20 degrees left lateral flexion, and 30 degrees right lateral
flexion (45 degrees is normal). (Zeren Report at 1). His lumbar
spine showed 50 degrees flexion (90 is normal), 15 degrees
extension (30 degrees is normal), and 15 degrees for left and right
lateral flexion (30 is normal). (Zeren Report at 2).
19

10. February 23, 2011 MRI of Lumbar Spine
The defendants also submit a report by Keivan Shifteh, M.D.,
detailing an MRI examination he conducted on the plaintiff’s lumbar
spine in February 2011.

(February 23, 2011 MRI of Paul Vaneden

(“2/23/2011 MRI”), attached as part of Exh. W to Kalick Decl.).
Dr. Shifteh found “mild disc bulges” at L3-L4 through L5-S1, a
small annular tear at L5-S1, an edema that was “likely secondary to
degenerative

changes,”

and

a

“mild

narrowing

of

the

right

neuroforamina at L4-L5 with questionable impingement of the right
L4 nerve root.”

(2/23/2011 MRI Report).

B. Procedural History
These two related cases, Kenneth Satterfield v. Jesus M.
Maldonado and Linden Yellow Cab, Inc., No. 14 Civ. 0627, and Paul
Vaneden v. Linden Yellow Cab, Inc. and Jesus Maldonado, No. 14 Civ.
3374, were consolidated for all purposes in June 2014 after being
removed at different times from New York State Supreme Court based
on diversity of citizenship. (Order dated June 25, 2014; Notice of
Removal; Notice of Removal (“Vaneden Removal”), Vaneden v. Linden
Yellow

Cab,

No.

14

Civ.

3374

(S.D.N.Y.

May

9,

2014)).

Subsequently, I issued an order allowing the Linden defendants to
file a counterclaim against Kenneth Satterfield and an amended
third party complaint against Elma Satterfield, which they did in
September 2014.

(Memorandum and Order dated Sept. 19, 2014;

Counterclaim Against Kenneth Satterfield; Amended Third Party
Complaint).

Mr. Vaneden then filed an amended complaint against

the Linden defendants, Elma Satterfield, and Kenneth Satterfield in
20

January 2015.

(Am. Compl.).

The Linden defendants now move for summary judgment against
Mr. Vaneden on the basis that he failed to sustain a serious
injury. (Notice of Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56 at 1-2).

Mr. Satterfield cross-moves against Mr.

Vaneden on the same grounds, seeks dismissal of his complaint with
prejudice (Notice of Cross-Motion at 1-2), and incorporates into
his cross-motion the Linden defendants’ submissions in support of
their

motion

DiMartini

in

dated

their
June

entirety10
16,

2015,

(Affirmation
¶¶

3-4;

of

Michael

Defendant

V.

Kenneth

Satterfield’s Declaration of Undisputed Facts Pursuant to Rule
56.1, ¶ 3; Defendant Kenneth Satterfield’s Reply Memorandum, ¶ 3).
Applicable Law
A. Legal Standard for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, a court
will grant summary judgment if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); Utica

Mutual Insurance Co. v. Munich Reinsurance America, Inc., 594 F.
App’x 700, 701-02 (2d Cir. 2014).

The moving party bears the

initial burden of identifying “the absence of a genuine issue of
material fact.”
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 323

The opposing party then must cite specific parts of the

10

As Mr. Satterfield has adopted the arguments and submissions
of the Linden defendants in seeking summary judgment against Mr.
Vaneden, I refer to Mr. Satterfield and the Linden defendants
jointly as “the defendants” below.
21

record, such as depositions, documents, affidavits or declarations,
and admissions, to demonstrate the existence of a genuine issue for
trial.

Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 324.

Only facts that could affect the outcome of the suit under the
governing substantive law are deemed “material.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001).

In

addition,

or

a

party

may

object

if

the

material

supporting

disputing a fact cannot be presented in an admissible form.

See

Fed. R. Civ. P. 56(c)(2); Santos v. Murdock, 243 F.3d 681, 683 (2d
Cir. 2001) (“Affidavits submitted to defeat summary judgment must
be admissible themselves or must contain evidence that will be
presented in an admissible form at trial.”).

Accordingly, in

deciding a summary judgment motion, a court has “broad discretion
in

choosing

whether

to

admit

evidence need be considered.”

evidence”

and

“only

admissible

Presbyterian Church of Sudan v.

Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (quoting
Raskin v. Wyatt Co., 125 F.3d 55, 65-66 (2d Cir. 1997)).

Where the

non-moving party fails to make “a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted.

Celotex, 477 U.S. at 322.

In assessing the record to determine whether there is a
genuine issue of material fact for trial, the court must view all
facts

in

the

light

most

favorable

to

the

non-moving

party.

Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be
22

believed, and all justifiable inferences are to be drawn in his
favor.”); accord Holcomb v. Iona College, 521 F.3d 130, 132 (2d
Cir. 2008).

Nonetheless, the court must inquire whether “there is

sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party,” and may grant summary judgment
where the non-movant’s evidence is “merely colorable” or not
significantly probative.
citations omitted).

Anderson, 477 U.S. at 249-50 (internal

In opposing a motion for summary judgment, a

party “may not rely on mere speculation or conjecture as to the
true nature of the facts”, as “conclusory allegations or denials
. . . cannot by themselves create a genuine issue of material fact
where none would otherwise exist.”

Hicks v. Baines, 593 F.3d 159,

166 (2d Cir. 2010) (alteration in original) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

23

B. New York’s No-Fault Law11
The

defendants’

motion

presents

me

with

“the

sometimes

frustrating task” of deciding whether the plaintiff’s alleged
injuries meet the threshold requirement of New York’s No-Fault Law,
“an elusive standard that all too frequently escapes facile and
final resolution.”

Brown v. Achy, 9 A.D.3d 30, 31, 776 N.Y.S.2d

56, 57 (1st Dep’t 2004).

The No-Fault Law provides for tort

recovery for economic loss that exceeds $50,000.
5102(a), 5104.

N.Y. Ins. Law §§

The statute encompasses economic losses incurred

through medical costs, lost wages, and reasonable and necessary
expenses.

N.Y. Ins. Law § 5102(a); see also Rookwood v. Valdez,

No. 99 Civ. 10285, 2001 WL 776939, at *3 (S.D.N.Y. July 11, 2001).

11

A federal court exercising diversity jurisdiction applies
the substantive law of the state in which it is sitting, including
that state’s conflict of law rules. Wm. Passalacqua Builders, Inc.
v. Resnick Developers South, Inc., 933 F.2d 131, 137 (2d Cir.
1991). “New York applies an ‘interest analysis’ to its choice of
law, under which the law of the jurisdiction having the greatest
interest in the litigation controls.”
Softel, Inc. v. Dragon
Medical and Scientific Communications, Inc., 118 F.3d 955, 967 (2d
Cir. 1997).
In a tort case, the significant contacts “are, almost
exclusively, the parties’ domiciles and the locus of the tort.”
Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 491
N.Y.S.2d 90, 95 (1985). “Where the parties are domiciled in
different states, the locus of the tort will almost always be
determinative in cases involving conduct-regulating laws.” Krock
v. Lipsay, 97 F.3d 640, 646 (2d Cir. 1996); accord Padula v. Lilarn
Properties Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 311 (1994).
Negligence law regulates conduct.
See In re Ski Train Fire in
Kaprun, Austria on Nov. 11, 2000, 230 F. Supp. 2d 376, 390
(S.D.N.Y. 2002). Here, Mr. Vaneden is domiciled in New York, the
Linden defendants are domiciled in New Jersey, and Mr. Satterfield
is presently a resident of Ohio; the accident in question occurred
in New York.
(Vaneden Removal, ¶ 3; Am. Compl., ¶¶ 2-4).
Consequently, New York law governs the claims in this case.
24

The

underlying

purpose

of

the

No-Fault

Law

is

“to

weed

out

frivolous claims and limit recovery to significant injuries.”
Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 902 (1995);
accord Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350,
746 N.Y.S.2d 865, 867-68 (2002); see also Licari v. Elliott, 57
N.Y.2d 230, 234-35, 455 N.Y.S.2d 570, 572 (1982). Accordingly, the
statute restricts recovery for automobile accidents as follows:
Notwithstanding any other law, in any action by or on
behalf of a covered person against another covered person
for personal injuries arising out of negligence in the
use or operation of a motor vehicle in this state, there
shall be no right of recovery for non-economic loss,
except in the case of a serious injury, or for basic
economic loss.
N.Y. Ins. Law § 5104(a).

Serious injury, in turn, is defined in

relevant part as:
[A] personal injury which results in . . . permanent loss
of use of a body organ, member, function or system;
permanent consequential limitation of use of a body organ
or member; significant limitation of use of a body
function or system; or 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. Law § 5102(d).
Where a claim involves non-economic loss, as here, a defendant
moving for summary judgment has the initial burden of putting
forward evidence showing that the plaintiff has not sustained a
serious injury within the meaning of the No-Fault Law.
F. Supp. 2d at 162-63.

Evans, 978

“The defendant may satisfy this initial

burden with unsworn reports by the plaintiff’s physicians or with

25

sworn affidavits or affirmations by the defendant’s own retained
physicians.”

Id. at 163 (quoting Thomas, 2010 WL 785999, at *7).

If the defendant makes such a prima facie showing, the burden
shifts to the plaintiff to “defeat the motion by submitting sworn
affidavits or affirmations by [his] physicians that support
claim of serious injury.”

[his]

Id. (quoting Mueller v. Seatainer

Transport, Ltd., 816 F. Supp. 2d 206, 210-11 (W.D.N.Y. 2011)).
To properly demonstrate a “serious injury,” a plaintiff must
provide

“objective

proof

of

[his]

injury,”

as

“subjective

complaints alone are not sufficient.” Toure, 98 N.Y.2d at 350, 746
N.Y.S.2d at 868. However, in Pommells v. Perez, the New York Court
of Appeals held that even where a plaintiff offers objective
medical proof of a serious injury, “when additional contributory
factors interrupt the chain of causation between the accident and
claimed injury –- such as a gap in treatment, an intervening
medical problem or a preexisting condition –- summary dismissal of
the complaint may be appropriate.” 4 N.Y.3d 566, 572, 797 N.Y.S.2d
380, 383 (2005).
Mr. Vaneden argues that he sustained injuries causally related
to the subject accident that pass the threshold test, as he
suffered both a permanent consequential limitation of use of a body
organ or member, and a significant limitation of use of a body
function or system.

(Pl. Opp. Memo. at 8-13).

Discussion
The defendants have made a prima facie showing that the
plaintiff did not sustain a serious injury to his back, neck, and

26

right knee within the meaning of the No-Fault Law.

See Jimenez,

2012 WL 279432, at *7-8 (collecting cases); Shaw, 8 A.D.3d at 10203, 779 N.Y.S.2d at 10. The defendants’ expert orthopedic surgeon,
Dr. Grelsamer, examined Mr. Vaneden and reviewed his medical
records, and determined that the plaintiff did not sustain a
meniscal tear as a result of the March 1, 2012 accident and did not
demonstrate acute distress while standing or walking.
Report at 1-5).

(Grelsamer

The defendants’ expert radiologist, Dr. Coyne,

evaluated the plaintiff’s MRIs and x-rays, and found that his knees
demonstrated

advanced

degenerative

changes,

his

cervical

and

lumbosacral spine showed degenerative changes, and all of the
degenerative changes of his spine and knees were chronic, longstanding, pre-existent, and not causally related to the subject
accident.

(Coyne Report at 3-4).

The defendants also submitted

medical records from chiropractic treatment Mr. Vaneden received in
2007, which labeled him “totally disabled” and found his range of
motion to be markedly constricted. (Zeren Report at 1-2). Lastly,
the defendants proffered an MRI of the plaintiff’s lumbar spine
pre-dating
changes.

the

accident

that

also

demonstrated

degenerative

(2/23/2011 MRI Report).

A. Permanent Consequential Limitation of Use
“To prove permanence, ‘it is not necessary to prove a total
loss of the affected function or system, but it is still necessary
to submit proof that it operates in some limited way, or operates
only with pain.’”

Baytsayeva v. Shapiro, 868 F. Supp. 2d 6, 21

(E.D.N.Y. 2012) (quoting Booker v. Miller, 258 A.D.2d 783, 784, 685

27

N.Y.S.2d 837, 837 (3d Dep’t 1999)); see also Barth v. Harris, No.
00 Civ. 1658, 2001 WL 736802, at *11 (S.D.N.Y. June 25, 2001)
(injury causing permanent but intermittent pain may qualify if
“more than minor or involv[ing] at least some restriction of
motion” or actual limitation of use) (collecting cases).

A

plaintiff must also “produce competent medical evidence that [his]
injuries are permanent.”
326,

333

(S.D.N.Y.

Ventra v. United States, 121 F. Supp. 2d

2000).

examination

purporting

plaintiff’s

serious

to

injury

The

absence

of

substantiate
claim

which

a

“that
alleges

recent

medical

portion
some

of

sort

a
of

permanent or significant injury . . . . leaves an important
evidentiary vacuum in a plaintiff’s opposition to a motion for
summary judgment.”

Baytsayeva, 868 F. Supp. 2d at 21 (internal

citation omitted).
Mr. Vaneden alleges that his neck, back, and right knee
impairments constitute a “permanent disability” as required to
establish a “serious injury.”

(Pl. Opp. Memo. at 11).

In

furtherance of this argument, the plaintiff cites Dr. Gaughan’s
findings from a June 2015 physical exam that Mr. Vaneden continued
to exhibit an antalgic gait, right knee tenderness, decreased
sensibility to vibration along the right foot, and a reduced range
of motion in his neck, back, and right knee.
Gaughan 6/17/15 Report at 1-2).

(Pl. Opp. Memo. at 9;

He also relies on Dr. Moros’

opinion that the limitations related to his right knee meniscus
tear are permanent. (Pl. Opp. Memo. at 9-10; Moros Report at 2-3).
Additionally,

in

his

deposition,

28

Mr.

Vaneden

complained

of

intermittent “stabbing pain” in his right knee, and neck and lower
back

pain,

causing

him

to

continue

taking

Vicodin.

The

“limitations” he experiences include an inability to run, play
basketball, or walk for long periods of time, all as a result of
the injuries he sustained in the March 1, 2012 accident.

(Vaneden

Dep. at 76-77, 79-80, 86-87).
Of course, “[p]ermanent injuries already in existence at the
time of the car accident will not qualify” as serious injuries.
Jones v. United States, 408 F. Supp. 2d 107, 117 (E.D.N.Y. 2006)
(collecting cases).
pre-existing

In Mr. Vaneden’s case, records demonstrate

conditions

affecting

his

neck

and

spine.

In

particular, notes from his 2006 treatment with Dr. Zeren discuss a
constricted range of motion of his cervical and lumbar spine,
tenderness, and inflammatory changes throughout the cervical,
thoracic, and lumbar spine.

(Zeren Report at 1-2).

Mr. Vaneden

was diagnosed with, among other things, cervical and lumbar spine
derangement, traumatic vertebral subluxation complex, and a closed
head injury, and was labeled “totally disabled.”
2).

(Zeren Report at

Additionally, an MRI of his lumbar spine from February 2011

showed

mild

disc

bulges

at

degenerative disc desiccation.

various

vertebral

segments

and

(2/23/2011 MRI Report).

The plaintiff has not provided any expert report that explains
why these pre-existing conditions are not the cause of his current
injuries.

Cf. Wadford v. Gruz, 35 A.D.3d 258, 259, 826 N.Y.S.2d

57, 59 (1st Dep’t 2006) (plaintiff’s expert noted prior accident
and documented differences between MRI taken after earlier accident

29

and after subject accident before concluding that injuries resulted
from the latter); see also Hayes v. Johnston, 17 A.D.3d 853, 85354, 794 N.Y.S.2d 462, 463 (3d Dep’t 2005) (granting summary
judgment where plaintiff failed to present objective evidence to
counter

testimony

of

defendant’s

expert

that

plaintiff’s

degenerative disc disease and mild disc bulging predated the
accident).

Morever,

Mr.

Vaneden

did

not

provide

meaningful

evidence addressing Dr. Coyne’s findings that July 2012 and August
2012 MRIs of the plaintiff’s cervical and lumbosacral spine showed
“degenerative disc and facet joint changes” and that all such
changes were “long-standing . . . and not causally related” to the
March 1, 2012 accident.

(Coyne Report at 3-4).

Dr. Gaughan’s

statement that the plaintiff’s back pain was “the result of
injuries” sustained in the accident (Gaughan 6/17/15 Report at 2)
is unsupported by objective testing.

See Arroyo v. Morris, 85

A.D.3d

489-90

679,

680,

926

N.Y.S.2d

488,

(1st

Dep’t

2011)

(experts’ failure to reference either plaintiff’s degenerative or
chronic condition made their opinion on causation “speculative”);
Rogers v. Chiarelli, 10 A.D.3d 355, 356, 781 N.Y.S.2d 368, 368-69
(2d Dep’t 2004) (summary judgment appropriate where plaintiff’s
expert failed to account for injuries to neck and back prior to
accident).

Therefore, as to his neck and back conditions, Mr.

Vaneden has not provided sufficient medical evidence to support his
claim of a serious injury causally related to the March 1, 2012
accident.
As for the plaintiff’s other conditions, the defendants argue

30

that the gap in his treatment is fatal to his serious injury claim.
(Memorandum of Law in Support of the Linden Defendants’ Motion for
Summary Judgment against Paul Vaneden Pursuant to FRCP 56 at 22;
Linden Reply at 8-9).

“While a cessation of treatment is not

dispositive . . . a plaintiff who terminates therapeutic measures
following the accident . . . must offer some reasonable explanation
for having done so.”
385.

Mr.

Vaneden

Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d at
contends

that

constitutes such an explanation.

discontinuation

of

benefits

(Pl. Opp. Memo. at 13-14).

This

is certainly true, see Peluso v. Janice Taxi Co., 77 A.D.3d 491,
492, 909 N.Y.S.2d 699, 700 (1st Dep’t 2010); Wadford, 35 A.D.3d at
259, 826 N.Y.S.2d at 59; however, even in the case that Mr. Vaneden
cites in support of this proposition, the plaintiff “offer[ed]
proof of the termination of her insurance benefits” in addition to
her testimony that she could not afford to pay for treatment “out
of pocket.”

Peluso, 77 A.D.3d at 492, 909 N.Y.S.2d at 700.

In the instant case, not only has Mr. Vaneden not provided any
proof that he was “treated until No-Fault would not pay for further
therapy and finally had surgery after finding a doctor who would
accept Medicaid,” he does not even provide a date on which his nofault coverage ended, state that his financial situation prevented
further treatment, or describe in any detail his search for a
surgeon who accepted alternative insurance.
10).

(Pl. Opp. Memo. at

Consequently, the plaintiff has not sufficiently explained

the sixteen-month gap in treatment between October 2012, when the
record indicates he last saw Dr. Gaughan for physical therapy

31

relating to his low back, neck, and right knee, and February 2014,
when he first consulted with Dr. Moros in advance of knee surgery.
(Gaughan 10/18/12 Report at 4; Moros Report at 4).

As the

defendants highlight, the record also indicates an unexplained gap
in treatment between May 2014 and June 2015, when the plaintiff
obtained affirmed reports from Dr. Gaughan and Dr. Moros in order
to oppose the defendants’ motion.

(Linden Reply at 8-9).

Dr.

Moros’ report from June 2015 states that Mr. Vaneden received a
corticosteroid injection in his right knee on May 6, 2014 (Moros
Report at 2); there is no proof of subsequent medical treatment for
that knee and Mr. Vaneden testified that he has not undertaken any
physical therapy in 2015 (Pl. 56.1, ¶ 9).
Additionally, although both Dr. Moros and Dr. Gaughan opined
that the right knee limitations resulting from the March 1, 2012
accident

are

“permanent,”

there

are

examinations supporting that conclusion.

no

recent

objective

See Jones, 408 F. Supp.

2d at 117 (a claim of permanent limitation “must be supported by
medical records, and not based solely on plaintiff’s testimony and
subjective descriptions of pain”).

In fact, Dr. Coyne found that

an October 2014 MRI of Mr. Vaneden’s right knee showed degenerative
changes, no evidence of a meniscus traumatic tear, and resorbed
joint effusion; he also concluded that none of the MRIs or x-rays
he reviewed showed any “osseous or soft tissue abnormality” related
to

the

accident.

(Coyne

Report

at

3-4).

In

light

of

the

plaintiff’s unproven and unexplained gaps in treatment and his
failure to bolster his claim of permanent injuries with objective

32

proof, the plaintiff has cannot establish a permanent consequential
limitation of use as to his right knee.
B. Significant Limitation of Use
A “significant limitation of use of a body function does not
require permanence, but instead requires a fact finding on the
issue of whether the dysfunction is important enough to reach the
level of significance.”

Jones, 408 F. Supp. 2d at 119 (quoting

Miller v. Miller, 100 A.D.2d 577, 578, 473 N.Y.S.2d 513, 514 (2d
Dep’t 1984).

The New York Court of Appeals has held that a “minor,

mild or slight limitation of use” of a body function or system does
not constitute a “significant limitation.”

Licari, 57 N.Y.2d at

236, 455 N.Y.S.2d at 573; accord Baytsayeva, 868 F. Supp. 2d at 22.
As with permanent consequential limitations, claims of serious
injuries based on the significance of a plaintiff’s limitation must
be supported by objectively measured and credible medical evidence.
Ventra, 121 F. Supp. 2d at 333-34; Jones, 408 F. Supp. 2d at 119.
“A plaintiff’s description of his pain and suffering, standing
alone without other objective indicia, cannot support a claim of
significant

limitation.”

Jones,

408

F.

Supp.

2d

at

119.

Additionally, a plaintiff must prove a significant limitation “in
both degree and duration.”

Gualtieri v. Farina, 283 F. Supp. 2d

917, 925 (S.D.N.Y. 2003); accord Partlow v. Meehan, 155 A.D.2d 647,
648, 548 N.Y.S.2d 239, 240 (2d Dep’t 1989).
In Toure, the New York Court of Appeals noted that “an
expert’s designation of a numeric percentage of a plaintiff’s loss
of range of motion can be used” to prove the extent of a physical

33

limitation and “substantiate a claim of serious injury.” 98 N.Y.2d
at 350, 746 N.Y.S.2d at 868; accord Baytsayeva, 868 F. Supp. 2d at
23.

A doctor’s “qualitative assessment of a plaintiff’s condition

also may suffice, provided that the evaluation has an objective
basis and compares the plaintiff’s limitations to the normal
function, purpose and use of the affected body organ, member,
function or system.”

Toure, 98 N.Y.2d at 350-51, 746 N.Y.S.2d at

868; accord Carter v. Atlantic Greyhound Lines of VA, Inc., No. 02
CV 0393, 2005 WL 1692639, at *6 (E.D.N.Y. July 5, 2005).

A

significant limitation is often demonstrated through an injury’s
impact on a plaintiff’s range of motion.
121.

Whether

a

limitation

of

use

Jones, 408 F. Supp. 2d at
qualifies

as

significant

“involves a comparative determination . . . based on the normal
function, purpose and use of the body part.”

Toure, 98 N.Y.2d at

353, 746 N.Y.S.2d at 869 (quoting Dufel, 84 N.Y.2d at 798, 622
N.Y.S.2d

at

902).

Additionally,

“[w]hile

there

is

no

set

percentage for determining whether a limitation in range of motion
is

sufficient

to

establish

‘serious

injury,’

the

cases

have

generally found that a limitation of twenty percent or more is
significant for summary judgment purposes.”

Hodder v. United

States, 328 F. Supp. 2d 335, 356 (E.D.N.Y. 2004) (collecting
cases).
Mr. Vaneden argues his range of motion, which was constricted
“immediately following the accident” and remains constricted, is
“clear evidence” that he sustained a signficant limitation under
the No-Fault Law.

(Pl. Opp. Memo. at 13).

34

Although Dr. Gaughan’s

reports

pre-dating

June

2015

do

indicate

that

the

plaintiff

experienced a restricted range of motion in the months following
the March 1, 2012 accident, Dr. Gaughan fails to ascribe
limitations to his decreased mobility.

any

(Gaughan 6/21/12 Report at

7-8; Gaughan 7/26/12 Report at 5-6; Gaughan 10/18/12 Report at 34). As for the plaintiff’s current range of motion, testing by Dr.
Gaughan and the defendants’ expert Dr. Grelsamer confirm that he
has experienced a considerable loss of mobility.
Report at 1-2; Grelsamer Report at 4).

(Gaughan 6/17/15

Notwithstanding the

quantitative measurement, there is also no explanation of actual or
specific limitations resulting from his decreased mobility; Dr.
Gaughan described only vague “permanent limitations [] in the
mobility of the neck, back and right knee.” (Gaughan Report at 2);
see

Bent,

15

A.D.3d

at

49-50,

788

N.Y.S.2d

at

59

(expert’s

statement that plaintiff’s limited range of motion affected his
daily life and caused functional disability conclusory and failed
to raise genuine isse of fact); Hemmes v. Twedt, 180 A.D.2d 925,
926, 580 N.Y.S.2d 510, 511 (3d Dep’t 1992) (upholding summary
judgment in part because plaintiff’s expert made no mention of any
activities

plaintiffs

would

be

unable

to

perform

due

to

limitations).
Moreover,

there

is

no

objective

evidence

demonstrating

constricted mobility. This is particularly problematic because, as
the court noted in Jones, diagnoses regarding range of motion are
often based on subjective tests “in which the plaintiff had some or
total control over his range of motion.”

35

408 F. Supp. 2d at 121-22

(discrediting range of motion testimony where plaintiff had control
over his range of motion and MRIs did not show further aggravation
of degenerations and injuries); cf. Baytsayeva, 868 F. Supp. 2d at
23 (denying summary judgment where plaintiff submitted three sworn
affidavits diagnosing her with conditions related to traumatic
brain injury and near-constant and severe pain throughout her body,
MRIs showing disc herniation and bulging, and recent range of
motion testing showing significant limitations). Because “New York
courts have consistently held” that a finding of loss of range of
motion “is insufficient to support an objective finding of serious
injury” without additional supportive evidence, Hodder, 328 F.
Supp. 2d at 349 (quoting Gillick v. Knightes, 279 A.D.2d 752, 752,
719 N.Y.S.2d 335, 336 (3d Dep’t 2001)), Mr. Vaneden’s claim of a
serious injury based on constricted range of motion fails.
The plaintiff also relies on his continued use of a knee
brace, antalgic gait pattern, and tenderness over his cervical
paraspinal

muscles

and

significant limitation.

right

knee

joint

as

constituting

(Pl. Opp. Memo. at 12-13).

a

However, the

plaintiff’s own expert Dr. Moros found in a June 2015 physical exam
that he was only experiencing “mild discomfort” in the right knee
(Moros Report at 3) and, as discussed above, mild limitations are
classified as insignificant under the No-Fault Law, see Jimenez,
2012 WL 279432, at *9; Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at
573.

As for Mr. Vaneden’s neck and back pain, the same issues that

prevent him from establishing a permanent limitation -- causation
and pre-existent injuries from his 2007 car accident -- also bar

36

him from claiming a significant one. Perhaps most pertinently, the
limitations described by Mr. Vaneden do not on their face rise to
the level of “significant.”

The plaintiff argues that he can no

longer run, play basketball, enjoy dancing, or walk too long. (Pl.
Opp. Memo. at 12).
recreational
limitation.

However, inability to fully participate in

activities

does

not

qualify

as

a

significant

See Cooper v. Dunn, No. 99 CV 6903, 2001 WL 138864, at

*11 (E.D.N.Y. Jan. 2, 2001). Furthermore, Mr. Vaneden’s subjective
description

of

relatively

mild

limitations,

unsupported

by

objective medical evidence, is insufficient to raise an issue of
fact.

See Thompson v. Abbasi, 15 A.D.3d 95, 101, 788 N.Y.S.2d 48,

53 (1st Dep’t 2005); Sellitto v. Casey, 268 A.D.2d 753, 755, 702
N.Y.S.2d 177, 180 (3d Dep’t 2000) (psychologist’s description of
plaintiff’s limitations did not “provide that objectively measure
quantum of evidence necessary to satisfy” significant limitiation
category); cf. Toure, 98 N.Y.2d at 353, 746 N.Y.S.2d at 870
(limitations significant where physician specifically attributed
plaintiff’s difficulty in sitting, standing, walking, and lifting
heavy boxes at work to injuries).
The plaintiff has not submitted evidence demonstrating that he
suffered a “severe injury” under either the permanent consequential
limitation of use or significant limitation of use categories of
New York Insurance Law § 5102(d), and there is accordingly no
genuine issue of material fact to preclude summary judgment in
favor of the defendants.

37

Conclusion
For the reasons set forth above, the Linden defendants' motion
for summary judgment
motion

(Dkt. No.

pretrial

order

62)

(Dkt.

No.

53)

and Mr.

are granted.

with

respect

to

Satterfield's cross

Counsel shall submit a joint
Mr.

Satterfield's

September 30, 2015.

SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York
August 31, 2015
Copies transmitted this date:
Nicholas Warywoda, Esq.
Parker Waichman LLP
6 Harbor Park Dr.
Port Washington, NY 11050
Neil R. Kafko, Esq.
Kafko Schnitzer, LLP
7 Hugh J. Grant Circle
Bronx, NY 10462
Lindsay J. Kalick, Esq.
Wilson Elser Moskowitz Edelman & Dicker LLP
1133 Westchester Ave.
White Plains, NY 10604
Eugene T. Boule, Esq.
Wilson Elser Moskowitz Edelman & Dicker LLP
677 Broadway
Albany, NY 12207
38

claims

by

Michael V. DiMartini, Esq.
Law Offices of Cohen & Kuhn
100 Williams Street, Suite 920
New York, NY 10038

39