Thomas-Young v. United States of America
DECISION AND ORDER GRANTING Defendant' s 32 Motion for Summary Judgment; DISMISSING Complaint; DENYING as moot Plaintiff's 38 Cross-motion for Partial Summary Judgment; CANCELLING the status conference previously scheduled for May 14, 2014 at 10:00 a.m.; DIRECTING the Clerk of the Court to close this case.. Signed by William M. Skretny, Chief Judge on 4/26/2014. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
UNITED STATES OF AMERICA
Plaintiff commenced this action against the United States under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) and § 2671 et seq. She seeks damages for injuries she
allegedly sustained in an automobile accident caused by a United States Postal Service
employee. Presently before this Court are Defendant’s motion for summary judgment
dismissing the complaint and Plaintiff’s cross-motion for summary judgment on the issue
of negligence. The Court finds both motions fully briefed and oral argument unnecessary.
For the reasons that follow, Defendant’s motion is granted, Plaintiff’s cross-motion
is denied as moot, and the complaint is dismissed.
The present action is the result of an accident occurring in Buffalo, New York, on
December 20, 2010. The facts of the accident itself are not in dispute. Plaintiff was
traveling west on William Street when a postal letter carrier, attempting to make a left hand
turn onto William Street, crossed into traffic in front of her. Plaintiff attempted to avoid the
postal truck, but the vehicles collided. (Docket No. 34-3 at 20-24.)
Plaintiff commenced the instant action in November 2011, and she alleges that the
accident exacerbated her pre-existing cervical spinal pain from a 2003 injury. (Docket No.
34-2 at 4.) Plaintiff was also involved in additional car accidents during 2010. The first
occurred on September 3, 2010, when Plaintiff ran into the passenger side door of another
vehicle while attempting to enter traffic from a driveway. (Docket Nos. 34-9 at 2; 35 ¶ 7.)
The second occurred on December 22, 2010, two days after the accident at issue in the
present case. (Docket No. 35 ¶ 8.) During this accident, Plaintiff rear ended another vehicle
that was stopped at a traffic light. (Docket No. 34-10 at 2.)
Plaintiff sought medical attention for neck pain on December 22, 2010. (Docket No.
34-4 at 8-9.) She was subsequently referred to a neurosurgeon in February 2011, who
recommended cervical spine surgery. That surgery was performed in May 2011, and a
subsequent surgery was performed in November 2011 to remove a cervical plate and
screw that had loosened. (Docket No. 38-10 ¶¶ 4, 9-11, 14-15.)
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary judgment
motion “is not to resolve disputed questions of fact but only to determine whether, as to any
material issue, a genuine factual dispute exists.” Kaytor, 609 F.3d at 545 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “A
dispute regarding a material fact is genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’ ” Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248), cert denied, 540 U.S. 811
(2003). A court must also “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).
Defendant contends that it is entitled to summary judgment because Plaintiff has
not suffered an economic injury in excess of $50,000 or a “serious injury” caused by the
subject accident as defined by New York1 Insurance Law § 5102(d). Defendant argues
that, as such, Plaintiff’s claims are barred by New York’s No Fault law. There is no dispute
that Plaintiff’s property damage claim is for only $843.79,2 (Compl. ¶¶ 14-18), therefore
resolution of Defendant’s motion turns on the issue of serious injury.
In order to weed out frivolous claims and limit recovery to significant injuries, New
York’s No Fault law requires that a plaintiff commencing an action for damages as a result
of a motor vehicle accident establish that he or she sustained a serious injury. See N.Y.
Insurance Law § 5104(a); Pommells v. Perez, 4 N.Y.3d 566, 571, 830 N.E.2d 278 (2005);
Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 774 N.E.3d 1197 (2002); Dufel v.
Green, 84 N.Y.2d 795, 798, 647 N.E.2d 105 (1995).
“Serious injury” means a personal injury which results in death;
Defendant’s liability under the Federal Tort Claims Act is determined by the law of the state
where the accident occurred, i.e. New York. Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y.
Indeed, Plaintiff does not respond to this point in Defendant’s brief. See Taylor v. City of New
York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (failure to address argument raised in summary judgment
motion constitutes abandonment).
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 [“90/180”] immediately
following the occurrence of the injury or impairment.
N.Y. Insurance Law § 5102(d).
To establish entitlement to summary judgment, a defendant must establish a prima
facie case that the plaintiff has not sustained a serious injury as defined by § 5102(d).
Gaddy v. Eyler, 79 N.Y.2d 955, 956, 591 N.E.2d 1176 (1992). The question of whether a
plaintiff has suffered a serious injury is a threshold question of law for the court to
determine. Yong Qin Luo v. Mikel, 625 F.3d 772, 776-77 (2d Cir. 2010); Licari v. Elliott, 57
N.Y.2d 230, 236, 441 N.E.2d 1088 (1982).
In order to prove the extent or degree of physical limitation, an expert’s
designation of a numeric percentage of a plaintiff’s loss of range of motion
can be used to substantiate a claim of serious injury. An expert’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. When supported by objective evidence, an expert’s
qualitative assessment of the seriousness of a plaintiff’s injuries can be
tested during cross-examination, challenged by another expert and weighed
by the trier of fact. By contrast, an expert’s opinion unsupported by an
objective basis may be wholly speculative, thereby frustrating the intent of
[New York’s] No-Fault Law to eliminate statutorily-insignificant injuries or
Toure, 98 N.Y.2d at 350-51 (internal citations and emphasis omitted); see Yong Qin Luo,
625 F.3d at 777; Dufel, 84 N.Y.2d at 798.
In support of its motion, Defendant submits the reports and declaration of Anthony
M. Leone, M.D., each of which is affirmed under penalty of perjury. See generally Marsh
v. Wolfson, 186 A.D.2d 115, 115-16, 587 N.Y.S.2d 695 (N.Y.A.D. 2d Dep’t 1992)(a
defendant may rely on the unsworn reports of a plaintiff’s own physicians or the opinions
of other physicians submitted in admissible form to establish entitlement to summary
judgment). Dr. Leone noted that the cervical areas allegedly injured in the subject
accident, C3-4 and C6-7, surrounded that part of the spine on which the anterior cervical
disketomy was performed in 2003. (Docket No. 34-7 ¶ 35.) This was “not a coincidence”
because “[i]t is well known and documented in the literature that the discs above a fusion
and below a fusion are subject to increased stress and increased wear.” (Id. (emphasis in
Dr. Leone further opined that Plaintiff’s January 2011 MRI:
clearly showed degenerative changes and blatant signs of wear and tear that
were no doubt due to the increased stress put upon those two discs by the
fusion that had been performed from the injury in 2003. Clearly at the age
of 47, when this accident occurred, [Plaintiff] already had significant disc
abnormalities at C3-4 and C6-7, and was no doubt headed towards a fusion
at those two levels due to the fact that she already had significant damage
to those discs due to the prior fusion which accelerated the wear-and-tear
process at C3-4 and C6-7.” (Id. ¶ 36.) This damage “would have ultimately
led to additional surgery at C3-4 and C6-7 at some point in time, regardless
of whether or not [the subject accident] happened or not.
(Id. ¶ 37; see id. ¶ 21.) Dr. Leone concluded:
While the incident of 2010 may have inflamed and aggravated these two
areas, the incident did not, by any means, cause the disc abnormalities
noted at those two levels and did not cause the wear-and-tear, degenerative
disc disease, facet degeneration, endplate changes etc. that were noted on
the MRI. I believe with absolute medical certainty that the pathology at C3-4
and C6-7 was not caused by the December 20, 2010 incident.
(Id. ¶ 38.)
In arguing that Defendant failed to establish a prima facie case of entitlement to
summary judgment, Plaintiff highlights the concession that “the incident of 2010 may have
inflamed and aggravated” her cervical spine. (Id.; Docket No. 38-14 at 3, 9.) “It is well
settled that the aggravation of an asymptomatic condition can constitute a serious injury
within the meaning of § 5102.” Verkey v. Hebard, 99 A.D.3d 1205, 1206, 952 N.Y.S.2d 356
(N.Y.A.D. 4th Dep’t 2012) (emphasis added); Talcott v. Zurenda, 48 A.D.3d 989, 991, 853
N.Y.S.2d 192 (N.Y.A.D. 3d Dep’t 2008) (medical opinion that but for the accident, plaintiff
“could have remaining asymptomatic throughout his life,” sufficient to establish serious
injury); see Sanchez v. Travelers Co., 658 F. Supp. 2d 499, 507 (W.D.N.Y. 2009)
(aggravation of an asymptomatic pre-existing condition may constitute serious injury under
In contrast, however, a defendant may establish its entitlement to summary
judgment where a plaintiff’s alleged injuries “are clearly an aggravation of a pre-existing
symptomatic condition.” Pugh v. DeSantis, 37 A.D.3d 1026, 1027, 830 N.Y.S.2d 823
(N.Y.A.D. 3d Dep’t 2007) (emphasis added). Here, Dr. Leone specifically highlighted
Plaintiff’s complaints of neck and back during the two months prior to the subject accident.
As summarized by Dr. Leone, Plaintiff treated with Dr. Pratibha Bansal in October and
November 2010, at which time her symptoms included neck pain aggravated by activity;
muscle spasm in the neck, shoulder and upper back; and frontal headaches. (Docket No.
34-7 ¶ 32.) Plaintiff had a seven-year history of neck and low back pain at that time. (Id.)
In October 2010, Dr. Bansal found that Plaintiff had a fifty-percent decreased range of
motion in all directions and by November 29, 2010, Plaintiff’s “chief complaint” as reported
was “constant upper and lower back pain. (Id. ¶¶ 33-34.) Dr. Leone found that these
records “indicate[d] that the Plaintiff’s complaints of pain and injuries were preexisting and
predate the December 20, 2010 accident,” and such complaints were “entirely consistent”
with his conclusion that the damage to the C3-4 and C6-7 area of the cervical spine was
degenerative. (Docket No. 34-7 ¶ 40.) Accordingly, Defendant’s physician concluded that
“Plaintiff’s injuries were due to a pre-existing symptomatic condition that was well
documented in the Plaintiff’s medical records.” (Id. ¶ 42 (emphasis in original).)
sufficient to establish Defendant’s prima facie entitlement to summary judgment on the
ground that Plaintiff has not suffered a serious injury causally related to the December 20,
2010 accident. Pugh, 37 A.D.3d at 1027.
The burden therefore shifts to Plaintiff to submit sufficient evidence to raise a triable
issue of material fact that her injuries are in fact causally related to the subject accident.
Pommells, 4 N.Y.3d at 580. She failed to meet this burden. Plaintiff submitted the
declaration of the neurosurgeon who treated her in 2011. (Docket No. 38-10.) Therein he
summarily states that Plaintiff “has a history of cervical spine discomfort,” but does not
discuss or even reference Plaintiff’s degenerative condition, a condition Plaintiff herself
admits was previously diagnosed (Docket No. 34-4 at 11), or her treatment with Dr. Bansal
just prior to the subject accident. Absent such discussion, the neurosurgeon’s conclusion
that the December 20, 2010 accident “worsened [Plaintiff’s] pain, severely restricted her
cervical range of motion and worsened her radiculopathy” is without any objective support.
(Docket No. 38-10 ¶ 16(1).) The further absence of any reference to either the September
3 or December 22, 2010 accident in this declaration also supports a conclusion that the
neurosurgeon’s causation opinion is based on an incomplete picture of Plaintiff’s medical
history. Defendant is therefore entitled to summary judgment on this issue.
Defendant has established its entitlement to summary judgment dismissing the
complaint based on the absence of a causally-related serious injury. As a result, Plaintiff’s
cross-motion for partial summary judgment on the issue of negligence is moot.
IT HEREBY IS ORDERED that Defendant’s motion for summary judgment
(Docket No. 32) is GRANTED and the complaint is dismissed;
FURTHER, that Plaintiff’s cross-motion for partial summary judgment (Docket
No. 38) is DENIED as moot;
FURTHER, that the status conference previously scheduled for May 14, 2014 at
10:00 a.m. is cancelled;
FURTHER, that the Clerk of the Court is directed to close this case.
Dated: April 26, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
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