Malave v. Fernandez et al

Filing 71

OPINION AND ORDER. For the reasons above, Plaintiff's motion for partial summary judgment is DENIED. The Clerk of Court is directed to terminate the motion appearing at Docket Entry #62. The parties are ORDERED to appear for a pretrial conferenc e on September 11, 2018, at 2:00 p.m., at which conference the parties will discuss scheduling a trial in this matter. SO ORDERED. re: 62 FIRST MOTION for Partial Summary Judgment filed by Edwin Malave, Edwin Malave, JR. (Pretrial Conference set for 9/11/2018 at 02:00 PM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 8/17/2018) (rjm)

AUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
EDWIN MALAVE JR.,
:
:
:
Plaintiff,
:
:
v.
:
FERNANDO FERNANDEZ, COACH USA,
:
:
INC., OLYMPIA TRAILS BUS COMPANY,
:
INC., NEW JERSEY TRANSIT PRICARR,
:
and EDWIN MALAVE,
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 17, 2018
______________

16 Civ. 8100 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff Edwin Malave Jr. alleges that in December 2015, a bus driven
by Defendant Fernando Fernandez (“Defendant Fernandez”) — and owned and
operated by Defendants Coach USA, Inc., Olympia Trails Bus Company, Inc.,
and New Jersey Transit Pricarr (together with Defendant Fernandez, the “Bus
Defendants”) — rear-ended a car in which Plaintiff was a passenger. The driver
of that car was Plaintiff’s father, Edwin Malave, whom Plaintiff has also named
as a defendant (“Defendant Malave,” and together with Bus Defendants,
“Defendants”). Plaintiff has not returned to work since the accident, and he
now moves for partial summary judgment on the issue of whether, as a result
of the accident, Plaintiff suffered a “serious injury” within the meaning of New
York Insurance Law § 5102(d). Because the record presents a genuine dispute
of material fact as to whether Plaintiff’s claimed injuries resulted from the
accident, the Court denies the motion.

BACKGROUND 1
A.

Factual Background
1.

The Accident and Plaintiff’s Initial Medical Treatment

This case involves a car accident that allegedly occurred on December 5,
2015, while Plaintiff was a passenger in a car driven by his father, Defendant
Malave. (See Pl. 56.1 Reply ¶¶ 7-8). According to Plaintiff, while that car was
stopped at a red light, a bus owned by the Bus Defendants and driven by
Defendant Fernandez struck the rear of the car. (See id. at ¶ 8). The following

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This Opinion draws its facts from the Amended Complaint (Dkt. #20 (“Am. Compl.”)),
Plaintiff’s Reply Statement Pursuant to Local Rule 56.1 (Dkt. #70-8 (“Pl. 56.1 Reply”)),
and certain exhibits submitted by the parties in conjunction with the motion for partial
summary judgment. On Plaintiff’s part, those exhibits include Plaintiff’s Medical
Records from the Lehigh Valley Physician Group (Pl. Ex. J (Dkt. #62-15 (LVPG Med.
Recs.))), Plaintiff’s Medical Records from St. Luke’s Hospital (Pl. Ex. Q (Dkt. #62-34
(“St. Luke’s Hosp. Med. Recs.”))), Plaintiff’s Medical Records from Dr. Christopher
Lycette (Pl. Ex. R (Dkt. #70-1 (“Lycette Med. Recs.”))), an affidavit from Dr. Christopher
Lycette (Pl. Ex. K (Dkt. #62-18 (“Lycette Aff.”))) and the exhibits attached thereto,
Plaintiff’s Notice of Award from the Social Security Administration (Pl. Ex. M (Dkt. #6227 (“SSA Award Notice”))), and an Expert Report by Dr. Jeffrey D. Klein (Pl. Ex. N (Dkt.
#62-28 (“Klein Initial Report”))). The Bus Defendants have also submitted exhibits as
attachments to the Declaration of Lindsay J. Kalick in Opposition to the Motion for
Partial Summary Judgment, including an addendum to Dr. Jeffrey Klein’s Initial Expert
Report (Kalick Decl., Ex. 2 (Dkt. #65-1 (“Klein Addendum”))), an Expert Report by
Dr. Calum G. A. McRae (Kalick Decl., Ex. 2 (Dkt. #65-2 (“McRae Report”))), an Expert
Report by Dr. Audrey Eisenstadt (Kalick Decl., Ex. 4 (Dkt. #65-4 (“Eisenstadt Report”))),
and Dr. Christopher Lycette’s Deposition Transcript (Kalick Decl., Ex. 5 (Dkt. #65-5
(“Lycette Dep.”))). For ease of reference, the Court refers to the Plaintiff’s Memorandum
of Law in Support of the Motion for Partial Summary Judgment as “Pl. Br.” (Dkt. #6235); the Bus Defendants’ Memorandum of Law in Opposition to the Motion for Partial
Summary Judgment as “Def. Opp.” (Dkt. #66); and Plaintiff’s Reply Affirmation as “Pl.
Reply Aff.” (Dkt. #70).
Citations to a party’s Rule 56.1 Statement incorporate by reference the documents and
testimony cited therein. Where a fact stated in either party’s Rule 56.1 Statement is
supported by evidence and denied with merely a conclusory statement by the other
party, the Court finds such facts to be true. See Local Civil Rule 56.1(c) (“Each
numbered paragraph in the statement of material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted for purposes of
the motion unless specifically controverted by a correspondingly numbered paragraph
in the statement required to be submitted by the opposing party.”); id. at 56.1(d) (“Each
statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each
statement controverting any statement of material fact, must be followed by citation to
evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”).

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day, December 6, 2015, Plaintiff reported to the emergency room at St. Luke’s
Hospital in Allentown, Pennsylvania, complaining of pain in his lower back and
neck that was not immediate after the accident but increased gradually after
the impact. (See id. at ¶ 9; St. Luke’s Hosp. Med. Recs.). Plaintiff was
diagnosed with strains to his right trapezius and lower back, and was
prescribed ibuprofen and a muscle relaxer before being discharged. (See St.
Luke’s Hosp. Med. Recs.). An x-ray taken during Plaintiff’s December 6, 2015
hospital visit did not reveal any evidence of an acute cervical fracture. (See id.).
On December 8, 2015, Plaintiff began treating and receiving physical therapy
at Lehigh Valley Physician Group Internal Medicine, for diagnoses of pain in his
lower back and shoulder, and sciatica. (See LVPG Med. Recs.).
2.

Plaintiff’s Spinal Surgery

Some three months later, on March 10, 2016 — and after physical
therapy failed to remedy Plaintiff’s pain — Plaintiff reported to Dr. Christopher
Lycette, a neurological surgeon, for an evaluation. (See Lycette Med. Recs.). A
report prepared by Dr. Lycette that accompanied records of his treatment
explains that Plaintiff underwent an MRI on February 12, 2016, which revealed
“a large, central disc herniation at L4-5 with severe central canal stenosis,” and
that “L5-S1 had a broad based disc herniation with moderate to severe bilateral
foraminal stenosis (greater on the right) and a disc bulge at L3-4.” (Id.). “The
radiologist also commented on likely bilateral pars defects at L5-S1 with mild
grade 1 anterolithesis.” (Id.). Given these findings and Plaintiff’s reported

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discomfort, Dr. Lycette “recommended surgical decompression and stabilization
with a L4-5 and L5-S1 posterior lumbar interbody fusion procedure.” (Id.).
On June 15, 2016, Plaintiff received surgery from Dr. Lycette, involving
“L4 and L5 laminectomies to decompress the central canal as well as removal
of the L4-5 and L5-S1 discs, placement of synthetic cages in the disc spaces
and pedicle screws into L4, L5 and S1.” (Lycette Med. Recs.). After the
surgery, Plaintiff reported that his symptoms gradually lessened, but
Dr. Lycette anticipated a “lengthy recovery.” (Id.).
3.

Plaintiff’s Unemployment and Consequent Disability Benefits

At the recommendation of his treating physicians, Plaintiff has not
returned to his prior employment as a locksmith since the accident. (See Pl.
56.1 Reply ¶ 10; see, e.g., Lycette Aff., Ex. A). As a result, Plaintiff received
disability benefits through his former employer’s insurance policy. (Pl. 56.1
Reply ¶ 11). In addition, on February 12, 2017, the Social Security
Administration (“SSA”) awarded Plaintiff disability benefits to cover the period
of unemployment beginning June 2016. (Id. at ¶ 16). The letter from the SSA
informing Plaintiff of his award states that the SSA “found that [Plaintiff]
became disabled under our rules on December 5, 2015,” and because an
applicant “must be disabled for five full calendar months in a row” to qualify for
disability benefits, “[t]he first month [Plaintiff was] entitled to receive benefits
[was] June 2016.” (SSA Award Notice).

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4.

Dr. Lycette’s Opinions on the Cause of Plaintiff’s Injuries

In various statements over the course of this litigation, Dr. Lycette has
conveyed his opinion that the December 2015 accident caused Plaintiff’s
injuries. For instance, during a March 30, 2017 deposition, Dr. Lycette
responded in the affirmative to the question whether he “believe[d] that the
accident of December 5, 2015 caused [Plaintiff’s] injuries and the symptoms
that” he had. (Lycette Dep. 68:4-14). He also testified, however, that disc
degeneration would increase an individual’s susceptibility to disc injury as a
result of a traumatic event (id. at 68:15-18); that he could not determine
whether Plaintiff’s stenosis “was traumatic in origin” as opposed to
degenerative (id. at 42:20-43:6); and that Plaintiff displayed “significant bone
spurring,” some of which “was certainly present before his accident” (id. at
43:17-23).
Yet in an affidavit from Dr. Lycette — dated after his deposition, on
October 31, 2017 — his testimony is much less equivocal on the issue of
causation. He states, “[i]t is [his] opinion within a reasonable degree of medical
certainty that [Plaintiff’s] injuries, the medical treatment and their sequ[e]lae …
were traumatically induced and as a result of the motor vehicle accident of
December 5, 2015.” (Lycette Aff. ¶ 10). He also states that “it is [his] opinion
within [a] reasonable degree of medical certainty that [Plaintiff] has suffered a
significant limitation of use of his lumbar spine as a result of the subject
accident.” (Id. at ¶ 13).

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5.

Defendants’ Expert Witnesses and Their Opinions on the Cause
of Plaintiff’s Injuries

As pertinent to the instant motion, Defendants have submitted reports
from three expert witnesses regarding the alleged accident and the injuries
Plaintiff claims to have suffered as a result. The Court discusses the salient
points of these reports in more detail below; here, the Court provides an
overview of the reports for context. Defendants rely on the opinions of (i) Dr.
Jeffrey D. Klein, a spinal surgeon with the New York University Hospital for
Joint Diseases (see Klein Initial Report); (ii) Dr. Audrey Eisenstadt, a radiologist
(see Eisenstadt Report); and (iii) Dr. Calum G.A. McRae, a biomechanical
engineer (see McRae Report; Def. Opp. 3).
All three defense witnesses express skepticism that the accident caused
Plaintiff’s injuries; rather, they contend that the injuries were related to
preexisting, degenerative conditions. For instance, Dr. Klein opines that
Plaintiff’s MRI scan revealed “multilevel degenerative/chronic radiographic
features [that] are the hallmark of preexisting radiographic findings,” which, he
believes “with reasonable medical certainty existed prior to the accident on
December 5, 2015.” (Klein Initial Report 4). Similarly, Dr. Eisenstadt remarks
that “[t]he calcified disc herniation seen at the L4-5 level on the original MRI
scan is associated with discogenic ridging or a bony response to the chronic
disc herniation, a process months to years in development and due to its extent
years in origin.” (Eisenstadt Report). Somewhat more plainly, Dr. McRae
concludes that “[t]here is no reason to expect that the claimed thoracic and
lumbar spine injuries were caused by the subject incident.” (McRae Report 9).
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B.

Procedural Background
Plaintiff initiated this action in New York State Supreme Court, Bronx

County, on or about May 19, 2016. (See Dkt. #1). On October 17, 2016,
Defendants removed the case to federal court. (Id.). On November 10, 2016,
the Court issued a case management plan allowing Plaintiff to amend his
complaint within 30 days (Dkt. #19), and on November 14, 2016, Plaintiff filed
an amended complaint alleging “[t]hat [D]efendants, their servants, agents
and/or their employees were negligent and indulged in culpable conduct by
reason of the recklessness and carelessness in the ownership, operation,
maintenance, management and control of” the motor vehicles involved in the
alleged accident. (Am. Compl. ¶ 49). Plaintiff also alleges that he “sustained a
serious injury as defined in §[ ]5102(d) of the Insurance Law of the State of New
York and/or economic losses defined by §[ ]5102(a) of the Insurance Law of the
State of New York.” (Id. at ¶ 54).
On September 8, 2017, Plaintiff submitted a letter to the Court indicating
his intention to move for partial summary judgment “on the issue of serious
injury pursuant to New York [I]nsurance [L]aw §[ ]5102(d).” (Dkt. #60). The
Court held a conference on September 29, 2017, during which it set a briefing
schedule for Plaintiff’s anticipated motion. (See Dkt. #64). In accordance with
that schedule, Plaintiff filed a motion for partial summary judgment along with
supporting papers on November 10, 2017. (Dkt. #62). The Bus Defendants
timely opposed the motion on December 15, 2017 (Dkt. #65-66), and
Defendant Malave filed a two-page letter in opposition to the motion three days

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after the deadline for responses, in which letter he essentially adopted the Bus
Defendants’ arguments (Dkt. #68). Plaintiff replied to Defendants’ opposition
submissions on January 5, 2018. (Dkt. #70). Accordingly, the motion is fully
briefed and ripe for decision.
DISCUSSION
A.

Summary Judgment Under Federal Rule of Civil Procedure 56
Rule 56(a) provides that a “court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute exists where “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 822
F.3d 620, 631 n.12 (2d Cir. 2016) (internal quotation marks and citation
omitted). A fact is “material” if it “might affect the outcome of the suit under
the governing law[.]” Anderson, 477 U.S. at 248.
While the moving party “bears the initial burden of demonstrating ‘the
absence of a genuine issue of material fact,’” ICC Chem. Corp. v. Nordic Tankers
Trading a/s, 186 F. Supp. 3d 296, 301 (S.D.N.Y. 2016) (quoting Catrett, 477
U.S. at 323), the party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see
also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Rather, the

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non-moving party “must set forth specific facts showing that there is a genuine
issue for trial.” Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins.
Co., 472 F.3d 33, 41 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
“When ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-moving party and
must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
2003). In considering “what may reasonably be inferred” from evidence in the
record, however, the court should not accord the non-moving party the benefit
of “unreasonable inferences, or inferences at war with undisputed facts.” Berk
v. St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)
(quoting Cty. of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1318 (2d
Cir. 1990)). Moreover, “[t]hough [the Court] must accept as true the allegations
of the party defending against the summary judgment motion, … conclusory
statements, conjecture, or speculation by the party resisting the motion will not
defeat summary judgment.” Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996)
(internal citation omitted) (citing Matsushita, 475 U.S. at 587; Wyler v. United
States, 725 F.2d 156, 160 (2d Cir. 1983)); accord Hicks v. Baines, 593 F.3d
159, 166 (2d Cir. 2010).
B.

A Genuine Dispute of Fact Remains as to Whether Plaintiff’s Injuries
Were Caused by the Accident
For the purposes of the instant motion, Defendants do not contest that

the December 5, 2015 accident occurred or that Plaintiff has not returned to
work for his prior employer since that date. Instead, Defendants argue that the
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record does not establish, as a matter of law, a causal connection between
Plaintiff’s claimed injuries and the accident. (See, e.g., Def. Opp. 2). The Court
agrees.
1.

Applicable Law

Under New York’s No-Fault Law, a plaintiff injured in a motor vehicle
accident may only recover for non-economic loss if he or she sustained a
“serious injury.” N.Y. Ins. Law § 5104(a); Oberly v. Bangs Ambulance Inc., 96
N.Y.2d 295, 298 (2001). A “serious injury” includes
a medically determined injury or impairment of a nonpermanent 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). New York courts refer to this category of serious
injury as “the 90/180 category.” See, e.g., Toure v. Avis Rent A Car Sys., Inc.,
98 N.Y.2d 345, 357 (2002); Zeigler v. Ramadhan, 774 N.Y.S.2d 211, 213 (4th
Dep’t 2004); Van Norden-Lipe v. Hamilton, 742 N.Y.S.2d 173, 174 (3d Dep’t
2002).
In order to establish a serious injury within the 90/180 category, a
plaintiff must show that his or her injuries were “medically indicated and
causally related to the injuries sustained in the accident,” and that such injury
“would have caused the alleged limitations on the plaintiff’s daily activities.”
Monk v. Dupuis, 734 N.Y.S.2d 684, 688-89 (3d Dep’t 2001) (quoting Blanchard
v. Wilcox, 725 N.Y.S.2d 433, 436 (3d Dep’t 2001)). As courts within this

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District have noted, such a showing requires a plaintiff to “show [that] the
injury was causally related to the accident”; thus, “medical evidence that the
claimed injuries were not caused by the accident, even if the evidence is based
on an examination conducted long after the accident,” may defeat a plaintiff’s
claim. Rogers v. McLamb, No. 04 Civ. 7043 (HBP), 2006 WL 2734228, at *5
(S.D.N.Y. Sept, 22, 2006) (collecting cases). Indeed, New York courts have
refused to find a causal connection between an alleged accident and injury —
and thus found that a plaintiff did not suffer a “serious injury” — where the
record contains evidence of preexisting injuries or degenerative conditions
unrelated to the accident. See, e.g., Wiles v. Gray, 935 N.Y.S.2d 218, 219 (3d
Dep’t 2011) (affirming dismissal of claims where defendant submitted evidence
showing preexisting injury and degenerative disc disease); Moses v. Gelco Corp.,
880 N.Y.S.2d 291, 291-92 (1st Dep’t 2009) (affirming dismissal where plaintiff
was involved in earlier accident after which he brought suit claiming injuries
“virtually identical” to those at issue and suffered injuries as result of
degenerative condition); Dabiere v. Yager, 748 N.Y.S.2d 38, 39 (3d Dep’t 2002)
(affirming dismissal where plaintiff suffered from degenerative condition and
had sustained injuries prior to accident). 2

2

Given this clear precedent, Plaintiff’s position that the source of Plaintiff’s injury, even if
“a pre-existing condition,” “does not have any bearing on whether or not [he] suffered a
‘serious injury’” is incorrect. (Pl. Br. 8). Tellingly, Plaintiff cites to no authority for this
proposition, and his reply to Defendants’ arguments suggests that Plaintiff
fundamentally misunderstands his burden of proof. (See Pl. Reply Aff. ¶ 6 (“It is
[P]laintiff’s position in this motion that … there will be issues of fact for a jury to
determine with regards to causation of some of the [P]laintiff’s injuries.”), ¶ 7
(“Certainly, the jury will have to determine whether or not [P]laintiff sustained all of the
claimed injur[i]es as a result of this motor vehicle incident.”)).

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“[T]he New York Court of Appeals [has] held that a court should decide
the threshold question of whether the evidence would warrant a jury finding
that the injury qualifies as a ‘serious injury.’” Yong Qin Luo v. Mikel, 625 F.3d
772, 776-77 (2d Cir. 2010) (citing Licari v. Elliott, 57 N.Y.2d 230, 236 (1982)).
New York courts apply a burden-shifting framework in analyzing summary
judgment motions on the issue of whether a plaintiff has suffered a “serious
injury”: First, “[a] plaintiff moving for summary judgment on the issue
of serious injury must establish, prima facie, that he or she sustained
a serious injury within the meaning of Insurance Law § 5102(d), and ‘that the
[serious] injury was causally related to the accident.’” Alexander v. Gordon,
945 N.Y.S.2d 397, 400 (2d Dep’t 2012) (alteration in original) (quoting Kapeleris
v. Riordan, 933 N.Y.S.2d 92, 93 (2d Dep’t 2011)). After satisfying this burden,
a defendant must present evidence showing that a triable issue of fact remains
as to whether the plaintiff has suffered a serious injury that bears a causal
nexus to the accident. See Elshaarawy v. U-Haul Co. of Miss., 900 N.Y.S.2d
321, 324 (2d Dep’t 2010). At each step, a party must support their position
with “sworn affidavits by physicians.” Mikel, 625 F.3d at 777 (quoting Barth v.
Harris, No. 00 Civ. 1658 (CM), 2001 WL 736802, at *2 (S.D.N.Y. June 25,
2011)).
2.

Analysis

The record presents a genuine dispute of fact as to whether the
December 2015 accident caused Plaintiff’s injuries. Plaintiff’s treating surgeon,
Dr. Lycette, opined at both his deposition and through his affidavit that, based
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on his review of Plaintiff’s MRI results, the accident caused Plaintiff’s back
injuries. (See Lycette Dep. 68:4-14; Lycette Aff. ¶ 10). This showing suffices to
satisfy Plaintiff’s prima facie burden of presenting a physician’s sworn affidavit
indicating that Plaintiff suffered an injury that was causally connected to the
accident. See, e.g., Elshaarawy, 900 N.Y.2d at 324 (holding that plaintiff
satisfied burden by submitting affirmation of orthopedic surgeon and plaintiff’s
own affidavit); Autiello v. Cummins, 890 N.Y.S.2d 652, 653-54 (3d Dep’t 2009)
(holding that plaintiff satisfied burden by submitting affidavits from treating
dentists); Mustello v. Szczepanski, 667 N.Y.S.2d 63, 64 (2d Dep’t 1997) (holding
that plaintiff satisfied burden by submitting affidavit of single treating
physician). 3
But Defendants have brought forth abundant evidence creating a
genuine dispute of fact as to causation. Dr. Eisenstadt’s opinion presents a
lengthy conclusion, based on a review of “serial radiographs, CT scans, MRI
scan and radiographs taken from within two-and-a-half months following the
incident through one year, three-and-a-half months following the incident,”
that Plaintiff suffered from “chronic abnormalities involving the lower lumbar
spine that have no traumatic basis or association with the” accident.

3

The Court finds little probative value in the disability benefits Plaintiff has received
through Social Security and his former employer’s insurance policy. Indeed, courts
have refused to find that a plaintiff suffered a serious injury even if the plaintiff received
such benefits. See, e.g., Conley v. United States, No. 08 Civ. 820 (HBS), 2010 WL
6370542, at *5 (W.D.N.Y. Sept. 2, 2010) (awarding summary judgment to defendants
where plaintiff failed to prove serious injury despite receiving social security
benefits), report and recommendation adopted, No. 08 Civ. 820 (RJA), 2011 WL 1156707
(W.D.N.Y. Mar. 28, 2011); Berk v. Lopez, 718 N.Y.S.2d 332, 333 (1st Dep’t 2000)
(affirming directed verdict for defendants where plaintiff failed to prove serious injury
despite accepting disability benefits for one year).

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(Eisenstadt Report 6). As support for this conclusion, Dr. Eisenstadt points to
various examples of chronic degenerative conditions. A few of these examples:
Plaintiff presented “[n]o acute fractures … in the region of the pars
interarticularis to indicate any acute or traumatic etiology for this defect in the
posterior bony spinal canal,” leading Dr. Eisenstadt to conclude that the
injuries resulted from “likely a fairly common congenital variant, allowing for
the slippage of the L5 vertebra … and predisposing to abnormal movement in
the lower lumbar spine and premature degenerative disc disease.” (Id.). She
also noted “[a]nterior osteophyte formation … at the L4-5 and L5-S1 levels on
both the MRI scan and CT scan shortly following the incident,” which were
then “over six months in origin and due to their extent more likely years in
development.” (Id.). Additionally, Dr. Eisenstadt observed “calcified disc
herniation … at the L4-5 level on the original MRI scan,” the very existence of
which “indicates its presence for months to years and could not have occurred
in two and a half months’ time.” (Id.).
Further support for the conclusion that Plaintiff’s injuries were the
product of chronic, degenerative conditions is found in Dr. Klein’s report.
Dr. Klein notes that x-rays taken on Plaintiff’s first hospital visit the day after
the alleged accident “reveal degenerative changes and loss of disc height” as
well as “diffuse spondylosis throughout the cervical spine with variable loss of
disc height and degenerative disc changes.” (Klein Initial Report 3-4). In
addition, a May 17, 2016 CT scan “revealed degenerative endplate sclerosis and
chronic disc space narrowing,” while a February 12, 2016 MRI indicated

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“multilevel lumbar spondylosis and disc degeneration with associated
herniations,” as well as “[m]ultilevel facet arthropathy and ligamentum flavum
hypertrophy[.]” (Id. at 4). In Dr. Klein’s view, “[s]uch multilevel
degenerative/chronic radiographic features are the hallmark of preexisting
radiographic findings and with reasonable medical certainty existed prior to the
accident on December 5, 2015.” (Id. (emphasis removed)). Dr. Klein also
considers a prior injury to Plaintiff’s neck or lower back as a result of a car
accident in 1995, which accident required significant chiropractic treatment,
and the fact that Plaintiff’s work at times required heavy lifting. (Id. at 4-5). 4
For Dr. Klein, “[a]ll of this taken together represents preexisting conditions in
both the neck and lower back that are longstanding.” (Id. at 5).
Finally, Dr. McRae arrives at similar conclusions as to causation, based
on his “analysis of the materials available and the claimed injuries of [Plaintiff],
using scientific and engineering methodologies generally accepted in the
biomechanical engineering community and automotive industry.” (McRae
Report 1). Given this data, including the negligible damage observed on
Defendant Malave’s car and the accounts of a low-speed collision (if any),
Dr. McRae estimated that any impact involved in the accident occurred at a
speed “significantly less than 10 [miles per hour],” and that “[t]he accelerations

4

Plaintiff does not specifically dispute these facts, or the fact that the prior accident also
resulted in litigation. (Cf. Pl. 56.1 Reply ¶ 24 (“[Plaintiff] was an infant at the time of
[the lawsuit stemming from the 1995 accident] and made no claims [but] [c]laims were
made on his behalf by his mother and attorney.”); Pl. Dep. 17:19-22 (Plaintiff’s
testimony that he required chiropractic treatment as a teenager because he “was in a
car accident”), 141:10-25 (Plaintiff’s testimony that his work as a locksmith required
him lifting doors weighing “three, four hundred pounds”)).

15

experienced by [Plaintiff] were within the limits of human tolerance and the
personal tolerance levels of [Plaintiff],” which “were comparable to that
experienced during various daily activities.” (Id. at 6-8). Drawing from these
findings, Dr. McRae concluded that “[t]here is no injury mechanism present in
the subject incident to account for [Plaintiff]’s claimed thoracic and lumbar
spine injuries,” and therefore “a causal relationship between the subject
incident and the claimed thoracic and lumbar spine injuries cannot be made.”
(Id. at 12).
In short, the evidence on which Defendants rely thus raises a genuine
dispute of material fact as to whether Plaintiff’s claimed injuries are causally
connected to the alleged December 5, 2015 collision. For that reason,
Plaintiff’s motion is denied.
CONCLUSION
For the reasons above, Plaintiff’s motion for partial summary judgment is
DENIED. The Clerk of Court is directed to terminate the motion appearing at
Docket Entry #62. The parties are ORDERED to appear for a pretrial
conference on September 11, 2018, at 2:00 p.m., at which conference the
parties will discuss scheduling a trial in this matter.
SO ORDERED.
Dated:

August 17, 2018
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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