Spencer v. Chung

Filing 33

MEMORANDUM OPINION and ORDER re: 26 FIRST MOTION for Summary Judgment . filed by John Chung: The defendant's March 31, 2021 motion for summary judgment is denied. (Signed by Judge Denise L. Cote on November 17, 2021) (ide)

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person against another covered person for personal injuries
arising out of negligence in the use or operation of a motor
vehicle in [New York), there shall be no right of recovery for
non-economic loss, except in the case of a serious injury."
N.Y. Ins. Law§ 5104(a).

"Serious injury," in turn, is defined

as, inter alia,
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.
N.Y. Ins. Law§ 5102(d).

Spencer claims that he has incurred

serious injury under all three of these definitions.
Under this scheme, courts must at summary judgment "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, 777 (2d Cir. 2010).

At

summary judgment, "a defendant must establish a prima facie case
that plaintiff did not sustain a 'serious injury' within the
meaning of" the statute, through "evidence from its own
physicians in the form of sworn affidavits."

Id.

"Once a

defendant's burden is met, the plaintiff is then required to
establish a prima facie case that he sustained a serious
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injury."

Id.

The plaintiff's case must also "be presented in

the form of sworn affidavits by physicians" and include
"objective proof of injury" that can be presented through either
an "expert's designation of a numeric percentage of a
plaintiff's loss of range of motion" or "[a]n expert's
qualitative assessment of a plaintiff's condition."

To

Id.

defeat summary judgment, the plaintiff may rely on the affidavit
of his treating physician, so long as that affidavit satisfies
the above requirements.

See, e.g., Dacosta v. Gibbs, 33

N.Y.S.3d 160, 161-62 (1st Dep't. 2016); Reyes v. Se Park, 8
N.Y.S.3d 22, 23 (1st Dep't. 2015).
Here, the plaintiff claims that he suffered serious and
permanent orthopedic injuries in the form of limited range of
motion in his spine, left knee, and shoulder.

In support of his

motion for summary judgment, the defendant provides the sworn
affidavits of a radiologist and an orthopedic surgeon, who
assert that the defendant's impairments were either transient,
the result of a preexisting degenerative condition, or the
result of a prior injury.

These affidavits present a prima

facie case that the plaintiff did not incur a serious injury.
The plaintiff, however, has presented the requisite prima
facie case of serious injury as defined by the statute.

He has

provided a sworn affidavit of his treating orthopedic surgeon,
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Dr. Kenneth McCulloch.

1

Dr. McCulloch describes in detail a set

of permanent partial impairments, resulting from the collision,
to the plaintiff's left knee and left shoulder and ongoing
treatment for those injuries.

These permanent impairments

include diminished range of motion in Spencer's left knee and
left shoulder, as assessed objectively, that persisted even
after Spencer underwent surgery on those joints.
That affidavit states the basis for Dr. McCulloch's
conclusion that the impairments resulted from the collision.
Dr. McCulloch assessed a limited range of motion in the injured
joints on November 14, 2018 and noted that the plaintiff
reported to him that he had no symptoms in those joints prior to
the collision.

This submission is sufficient to create an issue

of fact as to whether Spencer's symptoms were the result of a
preexisting condition or the collision.
4 N.Y.3d 566, 577 (2005)

See Pomrnells v. Perez,

(triable issues of fact raised where

The plaintiff has also presented affidavits and medical records
from other treating medical professionals. The defendant
contends that these materials do not create an issue of material
fact because the medical professionals' affidavits are
conclusory and the submissions are not sworn as required by the
no-fault insurance law and the New York Civil Practice Law and
Rules. The Court need not assess the parties' disputes
regarding the submissions by the plaintiff's other treating
medical professionals because Dr. McCulloch has submitted a
sworn affidavit that contains sufficient detail as to create a
prima facie case of serious injury as defined by the statute.
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the plaintiff's treating physician "identified measurements of
loss of range of motion in plaintiff's [joints], and on that
predicate opined that plaintiff suffered severe and permanent
injuries as a result of the accident.ff); Linton v. Nawaz, 879
N.Y.S.2d 82, 90 (1st Dep't. 2009)

(summary judgment improper

where "[p]laintiff submitted the affirmation of a treating
physician, based on a physical examination performed within days
of the accident, opining that the injuries were caused by the
accident. ff); Dacosta, 33 N.Y.S.3d at 162 (triable issues of fact
were raised in a case under the no-fault insurance law where the
plaintiff's treating physician found "objective indications of
injury ff and concluded that the plaintiff's injury was "causally
related to the accident

. in light of plaintiff's claim that

she was asymptomatic before the accident and the absence of any
medical records showing otherwise.ff) . 2

The physicians' differing

conclusions present issues of fact that must be resolved by the
jury at trial.

Expert affidavits submitted by the defendant claim that the
defendant's medical records indicate that the plaintiff incurred
injury in prior motor vehicle collisions, including one that
occurred only months before the May 10, 2018 collision that gave
rise to this litigation. The defendant has not supplied these
records, however, and even the defendant's affidavits do not
claim that the plaintiff was still experiencing symptoms as a
result of these prior collisions at the time of the May 10, 2018
incident. These assertions are therefore an insufficient basis
to grant summary judgment.
2

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Conclusion

The defendant's March 31, 2021 motion for summary judgment
is denied.
Dated:

New York, New York
November 17, 2021

D NISE COTE
United St tes District Judge

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