Abdulazeez v. Ean Holdings L.L.C. et al

Filing 56

MEMORANDUM AND ORDER: re: 39 MOTION for Summary Judgment filed by Hermann E Depazarce, 50 MOTION for Summary Judgment filed by Hermann E Depazarce. For the foregoing reasons, defendant's motion for summary judgment is denied with respect to (1) proximate causation and (2) plaintiff's allegation that he sustained a "serious injury" entitling him to recovery under New York's No-Fault Insurance Law under a theory of either permanent consequential limitation or signi ficant limitation. Defendant's motion is granted with respect to plaintiff's claim that he has suffered a serious injury under the 90/180 category. Counsel are directed to appear for a conference with the Court on January 27, 2020 at 2:30 p .m. at the United States Court House, 500 Pearl Street, New York, New York, in Courtroom 21A. Counsel should have authority to fully discuss all aspects of the litigation, including settlement. The Clerk of Court is respectfully directed to terminate all pending motions., ( Status Conference set for 1/27/2020 at 02:30 PM in Courtroom 21A, 500 Pearl Street, New York, NY 10007 before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 1/09/2020) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
Mohamed Imran Abdulazeez,
Plaintiff,

MEMORANDUM AND ORDER

- against -

17 Civ. 7415 (NRB)

Hermann E. Depazarce,
Defendant.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Mohamed Imran Abdulazeez commenced this action on
July 28, 2017 to recover damages for personal injuries purportedly
sustained in a motor vehicle collision that occurred on the Cross
County

Parkway

on

October

30,

2016.

Defendant

Hermann

E.

Depazarce, the driver of the vehicle that collided into the rear
of plaintiff’s vehicle, has moved for summary judgment on the
grounds that plaintiff’s cervical injuries were not proximately
caused by the subject accident and that the other injuries that
plaintiff sustained are not “serious injuries” within the meaning
of New York’s No-Fault Insurance Law. 1

1

In 1973, the New York State Legislature enacted the Comprehensive Motor
Vehicle Reparations Act (i.e., New York’s “No-Fault Law”) to promote prompt
resolution of vehicular injury claims while alleviating unnecessary burdens on
courts.
Pursuant to the No-Fault Law, automobile owners are required to
purchase automobile insurance and automobile insurers, in turn, are required to
compensate the insured for up to $50,000 in losses caused by the use or operation
of a motor vehicle in New York state, regardless of fault. Only claimants who
have suffered a “serious injury” within the meaning of the No-Fault Law are
permitted to file liability claims for personal injury losses that exceed the
$50,000 threshold. See N.Y. Ins. Law §§ 5101-5109.

1

For

the

reasons

discussed

herein,

defendant’s

motion

is

granted in part and denied in part.
I. Background 2
This case arises from a three-car motor vehicle accident that
occurred between Exits 7 and 8 of the Cross County Parkway at
approximately 6:30 p.m. on October 30, 2016.

At the time of the

accident, plaintiff, who was then 35 years old, was the operator
and registered owner of a 2016 Jeep Cherokee.
occurred

when

defendant’s

rental

vehicle,

a

collided with the rear of plaintiff’s vehicle. 3

The accident

Chrysler

sedan,

Due to the impact

Under the No-Fault Law, a “serious injury” is defined as a personal injury
that results in:
death; dismemberment; significant disfigurement; a fracture; loss of a
fetus; 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 [hereinafter, the
“90/180 category”].
N.Y. Ins. Law § 5102(d). As relevant here, plaintiff claims that he suffered
a “serious injury” under three of the aforementioned categories: (1) a
“permanent consequential limitation of use”; (2) a “significant limitation of
use”; and (3) the 90/180 category.
2 The following facts are drawn from Defendant’s Rule 56.1 Statement
(“Def.’s Rule 56.1”), Plaintiff’s Response to Defendant’s Rule 56.1 Statement
(“Pl.’s Rule 56.1”), Defendant’s Memorandum of Law in Support of Motion for
Summary Judgment (“Def.’s Mem.”); the Affirmation of James M. Carman in Support
of Defendant’s Rule 56 Motion and the exhibits annexed thereto (“Def.’s Ex.
__”); Plaintiff’s Memorandum of Law in Opposition to Defendant’s Summary
Judgment Motion (“Pl.’s Opp.”); the Declaration of Albert K. Kim in Opposition
to Defendant’s Motion for Summary Judgment and the exhibits annexed thereto
(“Pl.’s Ex __”); and Defendant’s Memorandum of Law in Reply to Plaintiff’s
Opposition to Summary Judgment (“Def.’s Rep.”).
3 The driver of the third vehicle involved in the collision is not a party
to this proceeding.

2

of the collision, plaintiff claims to have sustained injuries to
his cervical spine, lumbar spine, and right wrist. 4
A. Post-Accident Medical Treatment
Plaintiff was transported by ambulance from the scene of the
accident to Montefiore Mount Vernon Hospital, where plaintiff
reported pain to his neck and back.

While at the hospital,

plaintiff underwent a physical examination that revealed midline
tenderness of plaintiff’s neck at C3-C4.

A CT scan of plaintiff’s

cervical spine showed no acute findings.

Plaintiff was discharged

that

evening

with

instructions

to

prescribed for his neck and back pain.
23.

take

cyclobenzaprine

as

See Def.’s Ex. I at 19-

While the amount of work that plaintiff missed in the months

following

the

accident

is

disputed,

the

parties

agree

that

plaintiff missed at least one week of work immediately following
October 30, 2016. 5

See Def.’s Rule 56.1 ¶ 22.

On November 28, 2016, due to persistent pain purportedly
stemming

from

the

subject

accident,

plaintiff

sought

medical

attention at St. Mary’s Hospital in Waterbury, Connecticut.

Pl.’s

4 Specifically, plaintiff alleges that the injuries to his cervical spine
included disc herniations at C4/5 and C3/4 and disc bulges at C2/3 and C5/6;
that the injuries to his lumbar spine included radiculopathy and the need for
a lumbar spine injection and trigger point injections; and that his right wrist
was sprained. See Def.’s Rule 56.1 ¶ 3.
5

At the time of the accident, plaintiff was working full time at a mobile
store and approximately 30 hours per week as a driver for Lyft. See Def.’s
Rule 56.1 ¶¶ 20-21. Plaintiff maintains that, in addition to missing a week of
work at the mobile store following the accident, he also missed work from
November 11, 2016 through December 12, 2016 due to injuries sustained from the
accident. See Pl.’s Rule 56.1 ¶ 23.

3

Rule 56.1 ¶ 58. There, plaintiff was prescribed Naprosyn and
Flexeril for his neck pain and muscle spasms and was referred to
Peter Zilahy, a chiropractor, for treatment.
63.

Pl.’s Rule 56.1 ¶

During plaintiff’s first appointment with Dr. Zilahy on

December 1, 2016, Dr. Zilahy performed a variety of range of motion
tests

that

revealed

multiple

restricted

ranges

plaintiff’s cervical and thoracolumbar spines. 6
56.1 ¶¶ 69-73.
months

of

following

of

motion

to

See Pl.’s Rule

Plaintiff thereafter underwent approximately four

conservative
which

therapy

plaintiff

restricted ranges of motion.

treatment

continued

to

with

Dr.

experience

Zilahy,
pain

and

Plaintiff ceased seeing Dr. Zilahy

in April of 2017, when, according to Dr. Zilahy, plaintiff “had
reached

his

maximum

medical

improvement

conservative therapy treatment.”

with

respect

to

Pl.’s Ex. A ¶ 9.

In February of 2017, prior to concluding treatment with Dr.
Zilahy, plaintiff began seeing Dr. Dante Leven, a spinal surgeon.
Having concluded that the MRIs that plaintiff obtained at Dr.
Zilahy’s direction were of poor quality and thus difficult to
evaluate, and in light of plaintiff’s symptoms and the results of

6 Dr. Zilahy also referred plaintiff for x-ray and MRI testing.
Plaintiff
underwent x-rays of his cervical and lumbar spines on December 5, 2016, an MRI
of his cervical spine on December 19, 2016 (the “December 19 MRI”), and an MRI
of his lumbar spine on January 10, 2017.
Dr. Mahadevan Shetty, the diagnostic radiologist who first reviewed the
December 5 x-rays, reported no displaced fracture or dislocation with respect
to the cervical spine x-ray, but did note “3 to 4mm of anterolisthesis of C3
over C4 and 2mm of anterolisthesis of C4 over C5.” Def.’s Rule 56.1 ¶ 10. With
respect to the lumbar spine x-ray, Dr. Shetty reported “no compression
deformity, no displaced fracture or dislocation.” Def.’s Rule 56.1 ¶ 11.

4

a

physical

evaluation,

Dr.

Leven

referred

plaintiff

for

an

additional MRI of his cervical spine, which plaintiff underwent on
March 12, 2017.

See Pl.’s Ex. B ¶ 5.

The March 12, 2017 MRI

revealed, inter alia, a disc herniation at the C4/5 level of
plaintiff’s cervical spine that was not apparent in the December
19 MRI. 7

Dr. Leven thereafter recommended that plaintiff undergo

an anterior cervical discectomy (i.e., cervical spine surgery),
which Dr. Leven performed on July 11, 2017.

Following that

surgery, plaintiff missed approximately three months of work as a
manager of a gas station in Hartford, Connecticut.
B. Prior Injury
On January 1, 2016, approximately ten months prior to the
subject accident, plaintiff was assaulted while working at a gas
station.

See Def.’s Rule 56.1 ¶¶ 26.

was

in

hit

the

face

between

three

Plaintiff testified that he
and

five

times

and

was

subsequently admitted to St. Francis Hospital and Medical Center
in Hartford, Connecticut.

See Def.’s Ex. B at 33-34.

On January

2, 2016, a CT scan and x-ray was taken of plaintiff’s cervical
spine, neither of which contained positive findings.
56.1 ¶¶ 120-21.
hours

after

Pl.’s Rule

Following his release from the hospital several

being

admitted,

plaintiff

7

did

not

seek

medical

The March 14, 2017 report of the radiologist who originally reviewed
the results of the March 12 MRI recorded “a C4/5 posterior disc herniation
impressing on the vertical margin of the cord; a C3/4 posterior ligamentous
disc herniation effacing the ventral thecal sac and abutting the ventral cord;
and subligamentous disc bulges at C2/3 and C5/6.” Def.’s Rule 56.1 ¶ 17.

5

treatment for injuries sustained from the assault.

Pl.’s Rule

56.1 ¶ 122.
II.

Procedural History
Plaintiff originally filed this action in the Supreme Court

of the State of New York, Bronx County, against defendants EAN
Holdings, LLC (“EAN”), Enterprise Rent-A-Car (“Enterprise”), and
Hermann E. Depazarce.

On October 4, 2017, EAN and Enterprise,

both of whom have been dismissed as defendants in this action,
removed the case to this Court. 8

Following an initial conference

on November 21, 2017, the parties proceeded to discovery. 9
Discovery having concluded, defendant now moves for summary
judgment on the grounds that plaintiff did not sustain a “serious
injury” under Insurance Law § 5102(d) as a result of the October
30 accident.

In opposing defendant’s motion, plaintiff maintains

that, at a minimum, there is a genuine issue of material of fact

8 EAN and Enterprise were dismissed from this action pursuant to a
voluntary stipulation filed on May 14, 2018. See ECF No. 24.
9 On November 2, 2018, defendant filed a letter requesting a pre-motion
conference in connection with an anticipated summary judgment motion.
Defendant’s pre-motion letter stated, inter alia, that plaintiff’s herniated
disc, which did not appear in the December 19 MRI, could not have been caused
by the October 30 accident. See ECF No. 27. Plaintiff argued in his opposition
to defendant’s letter that defendant had, inter alia, failed to account for the
fact that Dr. Leven had requested a second cervical MRI at least in part because
the original MRI studies “were of poor quality” and “difficult to evaluate.”
See ECF No. 28. The Court thereafter directed defense counsel to submit an
additional letter explaining why, in light of plaintiff’s response highlighting
what appeared to be disputed issues of fact, defense counsel was still of the
belief that its motion for summary judgment could succeed. See ECF No. 29. In
response to that request, defendant filed a letter setting forth substantially
the same arguments that were made in his November 2 letter and that are set
forth in the instant motion. See ECF No. 30 at 2.

6

as to whether the herniated disc in plaintiff’s cervical spine,
which allegedly necessitated plaintiff’s July 2017 cervical spine
surgery, was proximately caused by the October 30 accident.
Having considered the present record, the Court agrees with
plaintiff that there are genuine issues of material fact regarding
whether plaintiff’s cervical spine injuries are causally related
to the October 30 collision.

Accordingly, defendant’s motion for

summary judgment is denied with respect to the issue of proximate
cause.

Defendant’s motion for summary judgment is also denied

with respect to plaintiff’s claim that he sustained a “serious
injury”

entitling

him

to

recovery

under

New

York’s

No-Fault

Insurance Law under a theory of either “permanent consequential
limitation” or “significant limitation.”
granted,

however,

with

respect

to

Defendant’s motion is

plaintiff’s

claim

that

he

sustained a serious injury entitling him to recovery under the
“90/180 category” of New York’s No-Fault Law.
III. Legal Standards
A. Summary Judgment
Summary judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

“A fact is material when it might affect the outcome of

the suit under governing law.” McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted)

7

(quoting Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.
2005)).

A factual dispute is genuine if a reasonable factfinder

could decide in the nonmoving party’s favor.

Id.

At summary judgment, a court must resolve all ambiguities and
draw all justifiable inferences in the nonmoving party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The

moving party must “make a prima facie showing that it is entitled
to summary judgment.”
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 331

If it does so, then there is no issue for trial unless

the party opposing summary judgment presents “sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party.”

Anderson, 477 U.S. at 249.

B. New York’s No-Fault Law
A defendant moving for summary judgment in cases governed by
New York’s No-Fault Law “must establish a prima facie case that
plaintiff did not sustain a ‘serious injury’ within the meaning of
Insurance Law § 5102(d).”

Yong Qin Luo v. Mikel, 625 F.3d 772,

777 (2d Cir. 2010) (quoting Barth v. Harris, 00 Civ. 1658 (CM),
2001 WL 736802, at *2 (S.D.N.Y. June 25, 2001).

See also Evans v.

United States, 978 F. Supp. 2d 148, 162–63 (E.D.N.Y. 2013) (“When
moving for summary judgment in a case involving the No-Fault Law
. . . defendant has the initial burden to make an evidentiary
showing that the plaintiff has not sustained a serious injury as
a matter of law”) (internal quotation marks omitted).

8

Under

Article 51 of the No-Fault Law, a “serious injury” is defined as
an injury that results in one of the following:
[1] death; [2] dismemberment; [3] significant disfigurement;
[4] a fracture; [5] loss of a fetus; [6] permanent loss of
use of a body organ, member, function or system; [7] permanent
consequential limitation of use of a body organ or member;
[8] significant limitation of use of a body function or
system; or [9] a medically determined injury or impairment of
a non-permanent nature which prevents the injured person from
performing substantially all of the material acts which
constitute such person’s usual and customary daily activities
for not less than ninety days during the one hundred eighty
days immediately following the occurrence of the injury or
impairment.
N.Y. Ins. Law § 5102(d).
Once a defendant has established a prima facie case that
plaintiff did not sustain a “serious injury” under § 5102(d), “the
plaintiff must rebut with sufficient admissible evidence to raise
a genuine issue of fact as to whether the plaintiff has sustained
a serious injury.”

Rivera v. United States, No. 10 Civ. 5767

(MHD), 2012 WL 3132667, at *10 (S.D.N.Y. July 31, 2012).

Rather

than rely solely on subjective complaints, “a plaintiff must offer
objective proof of an injury.”

Id.

“As long as the plaintiff

adduces sufficient objective evidence from which a jury could find
that she sustained a serious injury, summary judgment must be
denied ‘notwithstanding some contrary probative evidence.’”

Id.

(quoting Nasrallah v. Helio De, 1998 WL 152568, at *8 (S.D.N.Y.
Apr. 2, 1998)).

9

Finally, and of primary relevance here, “a plaintiff is
required

to

present

competent,

non-conclusory

expert

evidence

sufficient to support a finding, not only that the alleged injury
is ‘serious’ within the meaning of Insurance Law § 5102(d), but
also that the injury was proximately caused by the accident at
issue.”

Carter v. Full Serv., Inc., 29 A.D.3d 342, 344, 815

N.Y.S.2d 41, 43 (2006).

See also Arenes v. Mercedes Benz Credit

Corp., No. 03 Civ. 5810 (NG)(MDG), 2006 WL 1517756, at *8 (E.D.N.Y.
June 1, 2006) (“Even when there is objective medical proof that a
plaintiff sustained 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 pre-existing condition--summary dismissal of the
complaint may be appropriate.”).
IV.

Discussion
Defendant advances two arguments in support of his motion for

summary judgment.

The first argument, to which nearly all of

defendant’s motion is devoted, is that plaintiff’s neck-related
injuries are not causally related to the October 30 accident.
Plaintiff’s

second

argument

is

that,

even

assuming

that

plaintiff’s neck injuries were caused by the subject accident,
plaintiff still did not sustain a “serious injury” within the
meaning of Insurance Law § 5102(d).
turn.

10

Each argument is addressed in

A. Causation
The crux of defendant’s causation argument is that, because
the

December

19

MRI

was

negative

for

a

cervical

spine

disc

herniation, any subsequent positive findings concerning a cervical
spine disc herniation (i.e., the positive findings reflected in
the March 12, 2017 MRI), could not have been caused by the October
30, 2016 collision.

See, e.g., Def.’s Mem. at 16 (“The cervical

disc findings that serve as the Plaintiff’s claim did not appear
until after December 19, 2016.

Thus, the new cervical disc

findings identified in MRI studies taken on March 12, 2017 cannot
be ‘caused by’ an event that occurred prior to [the] December 19,
2016 MRI study which showed no disc problems at any level.”).

In

support of this argument, defendant relies, inter alia, on:
•

The MRI report of Dr. Shetty, the diagnostic radiologist
who first reviewed the images from the December 19 MRI and
opined that there was no evidence for focal disc herniation
or spinal stenosis. See Def.’s Ex. G at 3. According to
defendant, “Dr. Shetty specifically reviewed each of the
spine levels that the Plaintiff claims in this suit to have
been traumatically injured in the October 30, 2016 accident
and affirmatively states there are no disc herniations or
disc bulges.” Def.’s Mem. at 17. 10

•

The October 26, 2018 deposition testimony of Dr. Dante
Leven, plaintiff’s treating physician and surgeon, who
concluded that the December 19, 2016 cervical MRI images
did not reflect disc herniations at any level. See Def.’s
Ex. C at 9; and

10 Dr. Shetty did, however, identify “[a] tiny posterior endplate spur at
C4-5 not compressing either C5 root,” Def.’s Ex. G at 7, which is consistent
with the findings of Dr. Leven, discussed infra at 13.

11

•

In

The report and testimony of Dr. Steven Lastig, a
radiologist retained by defendant, who has opined:
(1)
that the images from the December 19 MRI revealed no disc
herniations or annular bulges; (2) that plaintiff’s March
12, 2017 cervical MRI was “consistent with a degree of
degenerative disc disease”; and (3) that the March 12, 2017
cervical MRI demonstrated “new findings” of midline disc
herniations at the C3-C4 levels that were not present on
the December 19 MRI and thus that the disc herniations were
not causally related to the October 30, 2016 accident. See
Def.’s Ex. D at 7.
light

of

the

foregoing,

defendant

maintains

that

plaintiff’s “neck related claims must be dismissed as a matter of
law,” Def.’s Mem. at 19, and that once plaintiff’s neck related
claims are dismissed, plaintiff’s remaining injuries –- namely,
the injuries to his lumbar spine and right wrist -- do not rise to
the level of a “serious injury” under the No-Fault Law.

Thus,

according to defendant, the entire action should be dismissed.
Def.’s Mem. at 15.
Assuming, arguendo, that defendant has met his initial burden
of establishing a prima facie case that the subject accident did
not

cause

plaintiff’s

neck-related

injuries,

plaintiff

has

proffered sufficient contrary evidence to defeat summary judgment.
Specifically, plaintiff points to the report and testimony of Dr.
Leven, plaintiff’s treating physician and spine surgeon, stating,
inter alia, that:
•

The December 19 MRI images were of poor quality and that
it was, at least in part, because those images were
“difficult to read and unreliable” that Dr. Leven
recommended that plaintiff obtain a second cervical MRI.
See Pl.’s Ex. B ¶ 5.

12

•

Based on the December 19 MRI, Dr. Leven was “concerned that
there was a disc herniation at [plaintiff’s] C4-C5 level
given what appeared to be an endplate spur on his cervical
spine MRI, [plaintiff’s] symptoms and complaints of pain,
and
the
results
of
[a]
physical
examination
of
[plaintiff’s] cervical spine.” Pl.’s Ex. B ¶ 5.

•

The findings in plaintiff’s March 12, 2017 cervical spine
MRI -– specifically, “the C4/5 disc herniation with nerve
impingement that necessitated Mr. Abdulazeez to undergo an
anterior
cervical
discectomy
and
fusion
surgical
procedure, are causally related to Mr. Abdulazeez’s October
30, 2016 motor vehicle collision.” Pl.’s Ex. B ¶ 16; and

•

The mild signs of degeneration to the cervical spine
identified by Dr. Lastig were not contributory to the C4/5
herniated disc that necessitated the July 11, 2017 surgical
procedure. See Pl.’s Ex. B ¶ 17. 11

Plaintiff has also submitted an affidavit from Dr. Zilahy,
plaintiff’s treating chiropractor, stating, inter alia, that:
It is my opinion to a reasonable degree of medical certainty,
based on my findings during the physical examinations I
conducted of Mr. Abdulazeez shortly after his accident,
including objective testing, Mr. Abdulazeez’s complaints of
pain following the subject accident, the fact that Mr.
Abdulazeez was asymptomatic immediately prior to his October
30, 2016 motor vehicle accident, that Mr. Abdulazeez’s
injuries to his cervical spine, lumbar spine, and bilateral
11 Defendant previously urged the Court to reject the opinion of Dr. Leven
in light of Dr. Leven’s failure to consider the January 2016 assault as a
possible cause of plaintiff’s neck injury.
However, Dr. Leven’s August 28,
2018 Declaration expressly acknowledges having reviewed plaintiff’s January
2016 CT scan and x-ray, which Dr. Leven determined were “unremarkable” and noncontributory to the injuries sustained in the October 30 accident. Pl.’s Ex.
B ¶ 14.
Defendant separately argues that Dr. Leven’s opinion regarding
plaintiff’s cervical disc herniation should be disregarded because Dr. Leven
has made contradictory statements regarding causality. Specifically, while Dr.
Leven stated in his Declaration that he “could not definitively note any focal
disc herniation or spinal stenosis in [plaintiff’s] December 19, 2016 cervical
spine MRI,” Pl.’s Ex. B ¶ 5, he testified during his deposition “that he did
not form an opinion as to the study because it was of poor quality.” See Def.’s
Rep. at 5-6.
It is unclear to the Court that the two statements are, as
defendant maintains, contradictory, much less that Dr. Leven’s testimony should
be disregarded in its entirety on that basis.

13

wrists were traumatically induced and directly caused by the
subject accident of October 30, 2016 in which he was a driver
that was struck in the rear by another vehicle. Furthermore,
Mr. Abdulazeez’s cervical, lumbar, and bilateral wrist
injuries are consistent with the mechanism of injury and are
thus, in my opinion, directly related to the subject accident.
Pl.’s Ex. 1 ¶ 10.
Viewed in the light most favorable to plaintiff, the foregoing
raises triable issues of fact that preclude summary judgment on
the issue of causation. Notwithstanding the opinion of defendant’s
expert, Dr. Lastig, that “the images and quality of the [December
19] MRI study was technically satisfactory and that the entire MRI
study was within normal limits,” Def.’s Mem. at 19, there remains,
at a minimum, a material issue of fact concerning the reliability
of the December 19 MRI images that are at the center of this
dispute.

Moreover, while Dr. Leven acknowledges that plaintiff’s

March 2017 cervical MRI reflects mild signs of degeneration to
plaintiff’s

cervical

degeneration

was

spine,

Dr.

non-contributory

Leven’s
to

the

opinion

that

the

herniated

disc

that

necessitated the July 2017 surgery raises a factual issue with
respect to defendant’s suggestion that plaintiff’s spinal disc
herniation could have been caused by degeneration rather than the
subject accident.

See Perl v. Meher, 18 N.Y.3d 208, 218–19, 936

N.Y.S.2d 655, 659–60 (2d Dep’t 2011) (treating physician’s opinion
that plaintiff’s injuries were causally related to the accident at
issue was sufficient to create an issue of fact regarding whether

14

the

accident

or

a

pre-existing

condition

caused

plaintiff’s

injuries); Cf. Agard v. Bryant, 24 A.D.3d 182, 182, 805 N.Y.S.2d
348, 349 (1st Dep’t 2005) (granting defendant’s motion for summary
judgment where “[t]he sworn medical report plaintiff submitted in
opposition failed to refute, or even to address, the opinion of
defendant’s

expert

that

the

limitations

of

plaintiff’s

knees

resulted from a preexisting degenerative condition”).
Because

plaintiff

has

sufficiently

rebutted

defendant’s

assertion that the disc herniation was not caused by the subject
accident, defendant’s motion for summary judgment must be denied
with respect to the issue of proximate cause.

See Rivera, 2012 WL

3132667, at *13 (denying defendant’s motion for summary judgment
where plaintiff provided contrary admissible evidence that cast
into question the position of defendant’s expert that plaintiff’s
injuries were not caused by the subject accident).
B. “Serious Injury”
Defendant argues that even assuming that plaintiff’s cervical
injuries were caused by the October 30 accident, plaintiff still
did not sustain a “serious injury” within the meaning of Insurance
Law § 5102(d).

In support of this argument, defendant relies upon

case law stating that the existence of a herniated or bulging disc,
in the absence of other objective medical evidence, is insufficient
to prove a “serious injury.”

See, e.g., Catalano v. Kopmann, 73

A.D.3d 963, 964, 900 N.Y.S.2d 759, 760 (2d Dep’t 2010) (“The mere

15

existence of a herniated or bulging disc is not evidence of a
serious injury in the absence of objective evidence of the extent
of the alleged physical limitations resulting from the disc injury
and its duration.”).

According to defendant, “the Plaintiff’s

claim that he suffered a serious injury under Insurance Law §
5102(d) is premised primarily on a claim of a disc herniation in
his

cervical

spine

allegedly

necessitating

cervical

spine

surgery,” and that since plaintiff has not shown that his physical
limitations “affect[ed] his daily life to any significant degree,”
his neck-related “serious injury” claim must fail.

See Def.’s

Rep. (ECF No. 55) at 4.
Assuming, arguendo, that defendant has met his initial burden
of

demonstrating

that

plaintiff’s

cervical

injuries

are

not

“serious” within the meaning of § 5102(d), plaintiff has introduced
sufficient

objective

evidence

of

a

“permanent

consequential

limitation” and/or a “significant limitation of use” to defeat
summary judgment on this issue.

It is well-settled that to

establish a “permanent consequential limitation” or a “significant
limitation of use” under the No-Fault Law, the medical evidence
submitted by plaintiff must contain either objective, quantitative
evidence

with

respect

to

diminished

range

of

motion

or

a

qualitative assessment evaluating plaintiff’s present limitations
vis-à-vis normal functioning. Toure v. Avis Rent A Car Sys., Inc.,
98 N.Y.2d 345, 350, 774 N.E.2d 1197, 1200 (N.Y. 2002).

16

Here,

plaintiff has set forth, inter alia, the results of objective range
of motion tests conducted by both Dr. Zilahy and Dr. Leven.

See

Zilahy Aff. (Pl.’s Ex. A) at ¶¶ 4-7 (quantifying restrictions to
plaintiff’s

range

of

motion

based

on

testing

of

plaintiff’s

cervical spine conducted in December of 2016 and February of 2017);
Leven Decl. (Pl.’s Ex. B) at ¶¶ 6, 13 (noting that range of motion
tests performed during plaintiff’s initial appointment in February
of 2017 and again in April of 2019 revealed quantified restrictions
in ranges of motion). 12

Because this evidence, considered in the

light most favorable to plaintiff, is sufficient to raise a triable
issue of fact as to the existence of a “permanent consequential
limitation” or a “significant limitation of use” within the meaning
of Insurance Law § 5102(d), defendant’s motion for summary judgment
as to those categories of serious injury must be denied. 13
Defendant
entitlement

to

has,

however,

judgment

as

a

made

a

matter

prima
of

law

facie

showing

of

with

respect

to

12 Dr. Zilahy notes, for example, that his December 7, 2016 physical
evaluation of plaintiff revealed that “[f]lexion was restricted to 31 degrees
(normal is 50 degrees, approximate 38% restriction), left lateral flexion was
restricted to 26 degrees (normal is 30 degrees, approximate 13.3% restriction,
right lateral flexion was restricted to 29 degrees (normal is 30 degrees,
approximate 3.3% restriction).” Zilahy Aff. ¶ 4. Similarly, Dr. Leven found
that “[f]lexion was restricted to 30 degrees with posterior neck pain
bilaterally (normal is 50 degrees – approximate 40% restriction); extension was
restricted to 30 degrees with right-sided radicular pain (normal is 60 degrees
– approximate 50% restriction).” Leven Decl. ¶ 6.
13 Having concluded that plaintiff has raised a material issue of fact
concerning the existence of a “serious injury” based upon his cervical injuries,
the Court need not consider defendant’s argument that plaintiff’s non-cervical
injuries (i.e., his alleged lumbar spine and wrist injuries) are not “serious
injuries” within the meaning of New York’s No-Fault Law.

17

plaintiff’s claim that he sustained a “serious injury” under the
“90/180” category of the No-Fault Law, which requires a showing
that a plaintiff was “unable to perform substantially all of her
daily activities for not less than 90 of the 180 days immediately
following the accident.” Rivera, 2012 WL 3132667, at *12 (emphasis
added).

In light of plaintiff’s own testimony that, immediately

following the October 30, 2016 accident, he missed only one full
week of work at the mobile store and continued to work as a driver
for Lyft for approximately ten to twelve hours per week, see Def.’s
Ex. B at 19-22, plaintiff has failed to show, as he must, that he
was unable to perform “substantially all” of his daily activities
for at least three of the six months following the accident. 14
V. Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment is denied with respect to (1) proximate causation and (2)
plaintiff’s

allegation

that

he

sustained

a

“serious

injury”

entitling him to recovery under New York’s No-Fault Insurance Law
under a theory of either permanent consequential limitation or
significant

limitation.

Defendant’s

14

motion

is

granted

with

As noted supra at 3, the parties dispute the precise amount of work
that plaintiff missed during the 180 days following the accident. But even if,
as plaintiff maintains, he missed work from November 11, 2016 through December
12, 2016 as a result of the subject accident, see Pl.’s Rule 56.1 ¶ 23, he still
would not meet the standard for serious injury under the 90/180 category. See,
e.g., Fludd v. Pena, 122 A.D.3d 436, 437, 997 N.Y.S.2d 14, 16 (1st Dep’t 2014)
(holding that plaintiff’s claim of “serious injury” under the 90/180 category
failed where “her deposition testimony indicated that she returned to work as
a police officer on limited duty eight weeks after the accident”).

18