Roth v. 2810026 Canada Limited Ltd et al
REPORT AND RECOMMENDATIONS / DECISION AND ORDER re 71 MOTION for Summary Judgment for Negligence & Serious Injury filed by Jeffrey Roth, 70 First MOTION for Summary Judgment filed by Pamela Bauman. Objections due fourteen days from receipt. Signed by Hon. Leslie G. Foschio on 9/28/2017. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
2810026 CANADA LIMITED,
2810034 CANADA LIMITED,
FREDERICK GROUP INC., and
2810026 CANADA LIMITED,
2810034 CANADA LIMITED, and
FREDERICK GROUP INC.,
DAVID W. POLAK, ESQ.
Attorney for Plaintiff
3686 Seneca Street
West Seneca, New York 14224
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants and Third-Party Plaintiffs
BEATA SHAPIRO, of Counsel
260 Franklin Street
Boston, Massachusetts 02110
BRIAN DEL GATTO, of Counsel
1133 Westchester Avenue
White Plains, New York 10604
FELDMAN KIEFFER, LLP
Attorneys for Third-Party Defendant
ADAM C. FERRANDINO, of Counsel
110 Pearl Street
Buffalo, New York 14202
On September 12, 2013, this case was referred to the undersigned by Honorable
Richard J. Arcara for all pretrial matters including preparation of a report and
recommendation on dispositive motions. The matter is presently before the court on
motions for summary judgment filed by Third-Party Defendant Bauman (R Dkt. 70), 1
filed February 13, 2017, by Plaintiff Roth (R Dkt. 71), filed February 14, 2017, and by
Third-Party Plaintiffs (B Dkt. 54), and on Third-Party Plaintiffs’ request for permission to
amend the ¶ 14 of the Third-Party Complaint (R Dkt. 75 at 20-22).2
On June 21, 2013, Plaintiff Jeffrey Roth (“Plaintiff” or “Roth”), filed a Summons
and Complaint in New York Supreme Court, Erie County, against Defendants 2810026
Canada Limited (“2810026 Canada Ltd.”), 2810034 Canada Limited (“2810034 Canada
Ltd.”), Frederick Group Inc., and Amarjit Singh (“Singh”) (together, “Defendants”),
In the interests of clarity and simplicity, and to avoid overlooking any arguments relevant to the pending
motions, the court considers all papers filed in two related actions, including the instant action
commenced by Jeffrey Roth, 13-CV-009801A(F) (“Roth Action”), and a separate action commenced by
Pamela Bauman, 15-CV-00374A(F) (“Bauman Action”), referring to documents filed in the Roth Action as
“R Dkt. __,” and to documents filed in the Bauman Action as “B Dkt. __.” In an effort to avoid ungainly
construction, where documents are filed multiple times either in the same action or in both actions, the
court references only one of the filings. Furthermore, because all parties have filed numerous papers
with the same or similar titles in both actions, and have sometimes filed the same papers in both actions,
the court, in referencing any document, does not assign any document an abbreviated name but simply
refers to each document only by its relevant docket item number.
Because the dispositive and non-dispositive motions before the court are inter-related, the court
addresses all pending motions in this combined Report and Recommendation and Decision and Order.
seeking to recover for personal injuries Roth allegedly sustained following an
automobile accident on November 9, 2011, in Buffalo, New York (“Buffalo”). In
particular, Roth was a passenger in a vehicle driven by one Pamela J. Bauman
(“Bauman”), which was involved in a collision with a tractor-trailer owned and operated
by Defendant Singh. Although the Complaint did not allege an amount in controversy,
Roth’s counsel conveyed a settlement demand for $ 900,000 (“Settlement Demand”),3
following the receipt of which Defendants 2810026 Canada Ltd., 2810034 Canada Ltd.
and Frederick Group, Inc. (“Corporate Defendants” or “Third-Party Plaintiffs”),4 on
September 4, 2013, removed the action to this court pursuant to 28 U.S.C. § 1446 (“§
1446”), asserting complete diversity of citizenship between the parties, in accordance
with 28 U.S.C. § 1332 (“§ 1332”), as the basis for subject matter jurisdiction in this
court.5 On September 11, 2013, Third-Party Plaintiffs filed their Answer and Third-Party
Complaint (R Dkt. 4), asserting cross-claims for indemnification and contribution against
Bauman (“Third-Party Defendant” or “Bauman”), should any of the Third-Party Plaintiffs
be found liable to Roth for the injuries he allegedly sustained as a result of the accident.
Bauman’s Answer to the Third-Party Complaint was filed November 15, 2013 (R Dkt.
12), and Singh’s Answer was filed February 5, 2015 (R Dkt. 27), asserting cross-claims
for contribution and indemnification against Bauman.6
No copy of the Settlement Demand is in the record.
The relationship between the Corporate Defendants to the tractor-trailer is not clearly stated in the
Because Singh had yet to be served with the Summons and Complaint, Singh was not required to, and
in fact did not, join in the removal. See 28 U.S.C. § 1446(b)(2)(A) (providing that “all defendants who
have been properly joined and served must join in or consent to the removal of the action.”).
Although Singh is represented by the same legal counsel representing Corporate Defendants, Singh
has not joined as a Third-Party Plaintiff in the Third-Party Complaint against Bauman, nor in Corporate
On November 3, 2014, Bauman commenced in New York Supreme Court, Erie
County, a separate personal injury action seeking to recover from the same Defendants
monetary damages for personal injuries she allegedly sustained as a result of the same
accident. The Corporate Defendants filed their answer on March 27, 2015, and served
Bauman with a Notice to Admit the amount in controversy exceeds $ 75,000. When
Bauman failed to deny or object to the Notice to Admit, Corporate Defendants, pursuant
to § 1446, removed the action to this court, asserting subject matter jurisdiction based
on complete diversity between the parties under § 1332, where the action was assigned
Dkt. 15-CV-00374A(F) (“Bauman Action”). Although the Roth Action and the Bauman
Action were consolidated on October 6, 2015, for purposes of discovery, scheduling and
case administration associated with pre-trial matters, the cases remain separate for all
other purposes.7 R Dkt. 37; B Dkt. 6.
On December 16, 2016, Corporate Defendants moved to dismiss the Bauman
Action for failure to comply with court-ordered discovery (B Dkt. 49) (“Motion to
On February 6, 2017, Roth and Bauman (together, “Plaintiffs”),8 filed the
Affirmation of David W. Polak, Esq. in Opposition to Defendants’ Motion to Dismiss (B
Dkt. 53), attaching Exhibit D to B Dkt. 41 (B Dkt. 53-1), and Exhibit B to B Dkt. 41 (B
Although the Roth Action and the Bauman Action were not consolidated for purposes of motion practice,
including dispositive motions, both parties have erroneously filed various motion papers in the wrong
case, and at other times have filed the same papers in both actions and also have filed papers containing
arguments pertaining to motions filed in both cases.
Because the separate actions filed by Roth and Bauman are based on the same incident, the court
refers to them together as “Plaintiffs” when doing so is supported by the context of this Report and
Recommendation/Decision and Order.
On February 13, 2017, Corporate Defendants filed their motion for summary
judgment (B Dkt. 54) (“Corporate Defendants’ Summary Judgment Motion”), asserting
Roth is unable to establish he sustained a “serious injury” as defined under N.Y. Ins.
Law § 5102(d) 9 (“§ 5102(d)”), and the Memorandum of Law in Support of Defendants
2810026 Canada Limited, 2810034 Canada Limited and Frederick Group Inc.’s Joint
Motion for Summary Judgment (B Dkt. 55), attaching exhibits A through H (B Dkt. 55-1
through 55-8). Also filed on February 13, 2017, was Third-Party Defendant’s motion for
summary judgment (R Dkt. 70), attaching the Attorney Affirmation of Adam C.
Ferrandino, Esq. (R Dkt. 70-1), with exhibits A through F (R Dkt. 70-2 through 70-7), the
Statement of Facts Pursuant to Local Rule 56 (R Dkt. 70-8), and the Memorandum of
Law (R Dkt. 70-9).
On February 14, 2017, Roth filed Plaintiffs’ Notice of Motion for Summary
Judgment (R Dkt. 71) (“Plaintiff’s Motion”),10 attaching the Affirmation of David Polak,
Esq. in Support of Plaintiffs’ Motion for Summary Judgment (R Dkt. 71-1), with reports
pertaining to four independent medical examinations (“IMEs”) (R Dkt. 71-2 through 714), and also filed exhibits A and B (respectively, R Dkt. 72-1 and 72-2).
On February 16, 2017, Third-Party Plaintiffs filed Defendants 2810026 Canada
Limited, 2810034 Canada Limited and Frederick Group Inc.’s Affirmation in Support of
Motion to Dismiss all Claims by Plaintiff Pamela Bauman and Opposition to Plaintiff’s
Motion to Reconsider11 (B Dkt. 57), attaching exhibit A (B Dkt. 57-1).
Unless otherwise indicated, references to N.Y. Ins. Law are to McKinney 1984.
Plaintiff’s Motion was also filed as B Dkt. 72.
The Motion to Reconsider pertains to a matter only before the court in the Bauman Action.
On April 6, 2017, Third-Party Defendant filed in opposition to Plaintiff’s Motion the
Affirmation of Adam C. Ferrandino, Esq. (R Dkt. 74), attaching exhibits A and B
(respectively, R Dtk. 74-1 and 74-2), and a Memorandum of Law (R Dkt. 74-3).
On April 7, 2017, Corporate Defendants filed as a single document the
Affirmation, Statement of Facts, and Memorandum of Law in Support of Defendant
2810026 Canada Limited Ltd., 2810034 Canada Limited, and Frederick Group Inc.’s
Opposition to Plaintiff Bauman’s Motion for Summary Judgment (R Dkt. 75), containing
the Affirmation of Beata Shapiro, Esq. (R Dkt. 75 at 1-2), Defendant’s Response to
Bauman’s Statement of Undisputed Facts (R Dkt. 75 at 2-18), and a Memorandum of
Law (R Dkt. 75 at 19-25), and attaching exhibits G through I (R Dkt. 75-1 through 753).12 Also filed on April 7, 2017, was the Affirmation of David Polak, Esq., in Support of
Plaintiffs’ Motion for Summary Judgment on Serious Injury and Negligence (R Dkt. 76; B
Dkt. 59), asserting both Roth and Bauman join in Bauman’s motion, as Third-Party
Defendant in the Roth Action, for summary judgment on the issue of negligence, and
attaching the Affirmation of P. Jeffrey Lewis, M.D. (“Dr. Lewis”) (R Dkt. 76-1), the
Affidavit [ ]13 of Plaintiff Roth (R Dkt. 76-2), the Affirmation of Michael Hallett, M.D. (“Dr.
Hallett”) (B Dkt. 59-1), and the Affidavit of Pamela Bauman (B Dkt. 59-2). On April 7,
2017, Corporate Defendants further filed as a single document the Affirmation,
The court notes no exhibits denominated as A through F have been filed by Third-Party Defendant in
the instant action. Furthermore, inasmuch as Bauman did file in the Bauman Action two sets of exhibits,
the first containing exhibits A through H (B Dkt. 55-1 through 55-8, Bauman), and the second containing
exhibits A through J (B Dkt. 56-12 through 55-11, Bauman), because Corporate Defendants’ Exhs. G
through I filed in the instant action do not correspond to those exhibits denominated as G, H and I in
either of the two sets of exhibits filed in the Bauman Action, the court does not presume that those
exhibits denominated as A through F filed in either of the two sets of exhibits in the Bauman Action were
intended as exhibits A through F in the instant action. In short, the court is unable to discern whether
Corporate Defendants filed anywhere in the instant action or in the Bauman Action and exhibits intended
to be considered as Exhs. A through F relative to Corporate Defendants’ papers filed as R Dkt. 75.
Unless otherwise indicated, brackets are added.
Statement of Facts, and Memorandum of Law in Suppor[t] of Defendant 2810026
Canada Limited [ ], 2810034 Canada Limited, and Frederick Group Inc.’s Opposition to
Plaintiffs Roth and Bauman’s Motion for Summary Judgment (R Dkt. 77), containing the
Affirmation of Beata Shapiro, Esq. (R Dkt. 77 at 1-2), Defendant’s [sic] Response to
Plaintiff’s Statement of Undisputed Facts (R Dkt. 77 at 2-19), and a Memorandum of
Law (R Dkt. 77 at 20-38), and attaching exhibits A through N (R Dkt. 77-1 through 7514).14
Filed on April 28, 2017, were the Affirmation of David W. Polak, Esq. (R Dkt. 78),
Third-Party Defendant’s Reply Memorandum of Law in Further Support of Its Motion for
Summary Judgment (R Dkt. 79), Plaintiff’s exhibits A through D (R Dkts. 80-1 through
80-4),15 the Attorney Affirmation of Beata Shapiro, Esq., for Reply in Support of
Defendants’ Motion for Summary Judgment as to Claims of Plaintiff Bauman (R Dkt.
81), attaching the Appendix of Materials in Support of Defendants’ Motion for Summary
Judgment as to Claims of Plaintiff Bauman (R Dkt. 81-1), and exhibits K through U (R
Dkt. 81-2 through 81-11),16 and the Attorney Affirmation of Beata Shapiro, Esq. for
Reply in Support of Defendants’ Motion for Summary Judgment as to Claims of Plaintiff
Roth (R Dkt. 82), attaching the Appendix of Materials in Support of Defendants’ Motion
for Summary Judgment as to Claims of Plaintiff Roth (R Dkt. 82-1), and exhibits I
through M (R Dkt. 82-2 through 82-6).17
Oral argument was deemed unnecessary.
In the interest of completeness, the court notes that Corporate Defendants’ Exhs. A through F do not,
based on their content, appear to be the exhibits missing with regard to Corporate Defendants’ exhibits
filed at R Dkt. 75-1 through 75-3. See n. 11, supra.
For unexplained reasons, the Affirmation of David W. Polak, Esq., previously filed as R Dkt, 78, was
also filed as R Dkt. 80.
The court notes that exhibits A through J were not included in this filing.
The court further notes exhibits A through H were not included in this filing.
Based on the following, Third-Party Defendant’s motion for summary judgment
should be DENIED; Roth’s motion for summary judgment should be DENIED; Corporate
Defendants’ motion for summary judgment (B Dkt. 54), should be GRANTED; ThirdParty Plaintiffs’ request (R Dkt. 75 at 20-22) for permission to amend ¶ 14 of the ThirdParty Complaint is DISMISSED as moot or, alternatively, is GRANTED; Corporate
Defendants’ request to strike Roth’s expert witnesses should be GRANTED in part and
DENIED in part.
On November 9, 2011, Plaintiff Jeffrey Roth (“Plaintiff” or “Roth”), was a frontseat passenger in a vehicle driven by Third-Party Defendant Pamela J. Bauman (“ThirdParty Defendant” or “Bauman”) (“Bauman’s vehicle”), in the far right-hand travel lane
northbound on Interstate 190, also known as the “Niagara Thruway” or “I-190,” heading
toward Niagara Falls, New York where Roth intended to catch an airplane flight to
Myrtle Beach, South Carolina. At the same time, an open, flat-bed tractor-trailer
operated by Defendant Armajit Singh (“Defendant” or “Singh”) (“the truck” or “Singh’s
truck”),19 was northbound in the center travel lane of I-190. It is undisputed that as both
Bauman and Singh traveled northbound on I-190 near the exit for Niagara Street,
Singh’s truck and Bauman’s vehicle collided (“the collision”). The parties dispute which
Taken from the pleadings and relevant motion papers filed in both the Bauman and Roth Actions.
Insofar as the parties may have filed other papers containing material relevant to the pending motions,
but not referenced in the motion papers, “the District Court [is] ‘not required to scour the record on its own
in a search for evidence’” the parties failed to present. ABC v. NYU Hospitals Center, 629 Fed.Appx. 46,
49 (2d Cir. Oct. 22, 2015) (quoting CILP Assocs., L.P. v. PricewaterhouseCoopers LLP, 735 F.3d 114,
125 (2d Cir. 2013)).
At his deposition, Singh stated he was the owner of the truck. See R Dkt. 70-5 at 3 (Singh responding
to deposition question “Do you know who owns that semi truck?” with “By myself.”).
vehicle caused the collision which was not witnessed by any non-parties to either the
Roth Action or the Bauman Action. Singh asserts he never saw Bauman’s vehicle until
he heard a noise and felt a “bounce.” Plaintiffs maintain Singh’s truck twice struck
Bauman’s vehicle, describing the impact from the first strike as a “nudge,” followed only
a second later by the second strike to the rear driver’s-side wheel well and wheel of
Bauman’s vehicle, sending the vehicle into a spin. Following the collision, both Bauman
and Singh steered their respective vehicles and truck to the right shoulder of I-190.
Singh maintains that Bauman pulled her vehicle onto the road’s right shoulder, and
Singh then pulled behind Bauman’s vehicle, R Dkt. 75-1 at 4 (Singh deposition
testimony); whereas Plaintiffs maintain Singh pulled over to the road’s right shoulder,
with Bauman pulling behind the truck. R Dkt. 70-9 at 6 (citing R Dkt. 70-3 at 25-27
(Roth deposition testimony).20
After pulling onto I-190’s right shoulder, Roth exited Bauman’s vehicle and Singh
exited his truck and noticed a plastic nut on the truck’s passenger-side front wheel was
damaged. Bauman’s vehicle was damaged near the rear, driver’s-side wheel. Singh
said he was sorry, but denied apologizing for causing the collision, inquired whether
anyone was injured, and provided Bauman with his identification and insurance
information. Although Bauman had placed an emergency 911 telephone call, when no
emergency vehicle quickly responded, Bauman resumed operating her vehicle, with
Roth as a passenger, driving northbound on I-190, hoping Roth could still catch his flight
to Myrtle Beach.21
The position of the vehicle and the truck on the right-shoulder of I-190 is irrelevant to the motions
before the court.
Although Roth’s planned travels included flying with Mr. Polak to Myrtle Beach, South Carolina where
Plaintiff was to assist with the remodeling of a kitchen in a condominium owned by Mr. Polak, and
Following the collision, Singh, aided by one Keith Goodyear (“Goodyear”), who
“manage[s] claims for [Defendant] 2810026 Canada Limited, Ltd.,” (R Dkt. 65-1 at 6),
produced a statement (“unsworn statement”), that on November 9, 2011, between noon
and 12:30 P.M., while driving north on I-190, approximately one mile before the exit for
the border between Canada and the United States, Singh’s truck hit an eight-year old
Pontiac Grand Am on the driver’s side rear panel behind the vehicle’s rear door. R. Dkt.
70-7 at 4. Immediately following the collision, Singh spoke with both Roth and Bauman,
neither of who were hurt, but were in a hurry to resume their travels to the airport and
did not want to miss Roth’s flight. Id.; R Dkt. 70-5 at 13. Singh presented Roth and
Bauman with his identification and insurance information. R Dkt. 70-7 at 4; R. Dkt. 75-1
at 9. According to Singh, the only damage to the vehicles was to the lug nut covers on
Singh’s truck tires, and some scratches to the rear panel of Bauman’s vehicle. R Dkt.
70-7 at 4. Because neither Roth nor Bauman was injured, they did not wait for any
emergency response vehicle to arrive, but instead drove off in Bauman’s vehicle which
remained operational. Id. at 5; R Dkt. 75-1 at 17. At his deposition, Singh explained
that although he told Roth and Bauman he was “sorry” for the collision, his words were
not intended as an admission that he caused the collision, but merely intended to be
“nice” and “polite.” R Dkt. 70-5 at 11; R Dkt. 75-1 at 6-7. Singh denied ever stating he
was attempting to change lanes at the time of the collision, R. Dkt. 75-1 at 7-8, and
denied seeing Bauman’s vehicle prior to the collision. Id. at 10. Within one week after
the collision, Singh, with the assistance of an unidentified person, prepared the unsworn
although Roth and Polak missed their intended flight, but caught a different flight the next day such that
Roth did assist with the planned kitchen renovation project in Myrtle Beach, no one has asserted Mr.
Polak is a fact witness and should be disqualified from further representing Roth and Bauman in the Roth
and Bauman Actions.
statement for his employer. Id. at 11. According to Singh, he required assistance
writing the unsworn statement because Singh has some difficulty conversing and writing
in English. R. Dkt. 75-1 at 14.
Roth’s Medical History
Roth is the owner of Cutting Edge Contracting where he has been self-employed
as a landscaper and construction contractor since 1999. R Dkt. 77-4 at 15, 21, 49.
Roth’s medical records establish Roth suffered a herniated disk in 1993 attributed to
heavy lifting at work. R. Dkt. 77-9 at 2.
In August 1997, Roth struck a guardrail while riding a motorcycle, partially
severing his left forearm and sustaining a torn left hamstring. R Dkt. 77-9 at 2; R Dkt.
77-10 at 3. Roth’s left forearm was surgically re-attached with plates and pins, but
Roth’s left forearm had some significant muscle wasting with a “dent” noticeable on top
of the forearm. R. Dkt. 77-9 at 2; R Dkt. 77-10 at 2-3.
On June 2, 1999, Roth was treated by Robin Shaw, MS, ANP (“NP Shaw”), at
Leroy Family Care in Leroy, New York for complaints of right knee discomfort without
swelling and not attributed to any specific injury. R. Dkt. 77-10 at 2. NP Shaw
assessed right knee strain with partial lateral ligament tear. Id. On November 1, 1999,
Roth returned to Leroy Family Care complaining that his right knee had been painful
since May 1999 when he hit it during work. R Dkt. 82-3 at 14. Although Roth thought
the pain would be alleviated through exercise and wearing a knee brace, a few weeks
earlier the pain increased after Roth moved a heavy load. Id. Roth’s knee was not
swollen or hot, but would lock and crack. Id. NP Shaw assessed right knee strain. Id.
On December 29, 1999, Roth was examined by Thomas H. Ball, M.D. (“Dr.
Ball”), and NP Shaw, for complaints of back pain resulting from an incident earlier that
day when Roth, while carrying a vacuum, stepped from the bumper off the back of a
van, and slipped and twisted. R Dkt. 82-3 at 13. Although Roth did not fall, he felt a
wrenching in his back which had since tightened up, with pain radiating down his right
buttock and around to both groins. Id. NP Shaw assessed Roth with low back strain
and ordered Roth to remain off work until the following Tuesday. Id. On January 3,
2000, Roth was seen in follow-up by NP Shaw and Dr. Ball who assessed Roth with low
back pain for which Roth was to start physical therapy at Summit Physical Therapy in
Batavia, New York. Id. at 12. On the following Tuesday, January 4, 2000, physical
therapist Christopher Muffoletto, P.T. (“P.T. Muffoletto”), evaluated Roth who continued
to complain of “constant low back pain” attributed to the episode the previous
Wednesday. R Dkt. 77-9 at 2-3. Since the incident, Roth had intermitted sharp pains in
his hips when performing heavy lifting. Id. Roth’s symptoms were aggravated when
sitting for more than five or 10 minutes, forward bending, and driving a car. Id. Upon
examination, Roth ambulated without any significant gait deviations, stood “fairly easily”
and his posture was “characterized by reduced lumbar lordosis.” Id. P.T. Muffoletto’s
impression was lumbar radiculopathy possibly secondary to degenerative disk disease,
with 50% decreased lumbar flexion range of motion (“ROM”), increased lumbar pain,
increased groin pain, and positive lower limb tension test. Id. at 2-3.
When examined by NP Shaw on January 12, 2000, in follow-up, Roth reported
his low back pain “is getting quite a bit better,” but Roth had yet to try any particular
lifting. R Dkt. 82-3 at 11. Roth was advised to complete a full month of physical therapy
and cleared to return to work on January 17, 2000. Id.
On January 2, 2001, Roth fell and an X-ray of Roth’s left forearm taken the next
day showed surgical changes and old traumatic residual but no acute fracture. R Dkt.
On January 6, 2002, Roth, while at work, pulled his back while moving an
incorrectly bolted steel gantrey. R Dkt. 82-3 at 10. Roth heard a crunch and fell to the
ground. Id. Roth was evaluated in the emergency room at United Memorial Medical
Center, Batavia, New York, where he underwent a complete lumbosacral spine series of
X-rays in connection with a lifting injury resulting in low back pain. Id.; R Dkt. 77-14 at
2. The X-rays showed a “hint of spondylosis and osteoarthritis. Minimal narrowing of
the posterior L5-S1 disc space either acquired or congenital essentially unchanged
since series of 1989. No fracture noted.” Id. On June 9, 2002, Roth was examined by
NP Shaw in connection with the January 6, 2002 incident, and low back pain was
assessed with Roth ordered off work until January 14, 2002, following which Roth was
to use caution when lifting heavy objects. R Dkt. 82-3 at 10.
On June 11, 2002, NP Shaw examined Roth who continued to complain of low
back pain in connection with the January 6, 2002 incident. R Dkt. 82-3 at 2. Roth
reported the pain was not improving, he continued to have low back pain radiating down
the buttock, denied numbness, but maintained he avoided sharp movements which
caused sharp pain. Id. Roth was no longer working for his employer. Id. Physical
examination revealed positive straight leg raise test on the right, normal flexion and
extension, but lateral rotation to the left exacerbated right lower back pain. Id. NP
Shaw assessed low back pain, ordered an MRI, but did not prescribe physical therapy
because Roth reported he continued to perform the exercises he had previously been
taught at physical therapy without any improvement. Id.
In connection with Roth’s complaints of pain following the November 9, 2011
collision, on November 15, 2011, X-rays taken of Roth’s cervical spine, left shoulder,
and left knee, showed an intact cervical spine, degenerative changes of the left
acromioclavicular joint (shoulder), and an intact left knee. R Dkt. 77-11.
On February 7, 2012, Roth underwent arthroscopic surgery and subtotal medial
meniscectomy to repair a meniscus tear on his left knee performed by Richard K. Hoy,
M.D. (“Dr. Hoy”). R Dkt. 82-6 at 2-4.
At the request of Dr. Hoy, Roth, on April 3, 2012, underwent a two-part MRI
arthrogram of his right shoulder.22 B Dkt. 55-7 at 8-9. The MRI showed no labral tear
but a prominent sublabral recess (anterior portion of the superior labrum (cartilage) not
attached to the glenoid (shoulder socket)), no rotator cuff tear but rotator cuff tendinosis,
scarring adjacent to the anterior inferior labrum but no labral tear, hypertrophic change
at the acromioclavicular joint and lateral acromial downsloping and mild subacromial
narrowing, but no fracture. B Dkt. 55-7 at 8. The arthrogram showed uneventful
distention of the glenohumeral joint and subchondral cyst within the lower glenoid. Id. at
The impressions of an MRI of Roth’s lumbar spine without contrast, performed by
Allyson Haymes, M.D. (“Dr. Haymes”), on April 27, 2012, included “straightening of
lumbar lordosis presumably secondary to muscle spasm. Minimal retrolisthesis at L4-
There is no explanation in the record why Dr. Hoy ordered the MRI of Roth’s right shoulder.
L5 and L5-S1.” B Dkt. 55-7 at 6. Also, degenerative disc disease “by far most severe at
the lower lumbar levels. At L4-5 there is a moderately large central to left paracentral
disc extrusion caudad tendency, that results in mild spinal canal narrowing, and
generalized disc and facet disease at L4-5 results in mild canal narrowing and
combine[s] with retrolisthesis to modestly encroach upon the L4 foramina. At L5-S1, a
central to predominantly left paracentral disc extrusion is present that results in a
borderline central canal caliber and more significantly narrows the L5 foramina, in
combination with retrolisthesis.” Id. at 6-7. According to Dr. Haymes, “listheses are
presumed degenerative in etiology,” and Dr. Haymes “detected no underlying pars
defects.” Id. at 7.
X-rays of Roth’s cervical and lumbar spine were taken June 21, 2012. B Dkt. 557 at 2-3. The cervical spine X-ray showed “degenerative changes at C5-6, minimal
anterolisthesis stable on flexion and extension view.” Id. at 2. Roth’s lumbar spine Xray showed “no change of alignment between flexion extension view. Degenerative
changes in the lower lumbar spine.” Id. at 3.
At a post-surgery examination of his left knee by Dr, Hoy on August 13, 2012,
Roth was not then taking any pain medications, his pain was “mild” and only sporadic,
Roth had been discharged from physical therapy, and his “work status” was “regular
duty.” R Dkt. 82-6 at 2. Dr. Hoy found Roth to be “doing acceptably well” with some
tenderness over the medial femoral condyle which Dr. Hoy was hopeful would resolve
on its own. Id. at 3. At that time, Roth was working, and Dr. Hoy believed the knee
injury was causally related to the collision. Id. Because Roth had not yet reached his
optimum recovery, Dr. Hoy refrained from expressing whether Roth would have any
permanent impairment from the knee injury. Id.
An MRI of Roth’s right shoulder performed at Dr. Hoy’s request on April 29, 2014,
showed a prominent anteroinferior labral tear, Perthes type (membrane torn from
shoulder socket, but still partially attached), with perlosteal elevation and a para labral
cyst containing injured fibers, possible periosteal, a large degenerative cystic focus in
the glenoid in the subjacent bone, no Hill-Sachs lesion nor associated tear of the
subscapularis, although Roth previously may have had a bony Bankart injury (injury to
the ball and socket joint of the shoulder), which could account for some of the observed
bony deformity, and would explain Roth’s anterior instability symptoms. B Dkt. 55-8 at
5. The MRI also showed tendinosis and articular surface partial thickness tearing of
fibers of the infraspinatus over the footprint without full-thickness tear rupture or
retraction or atrophy, outlet narrowing beneath the a.c. joint lateral acromion, injury
edema in the anterior myotendinous junction of the supraspinatus which could correlate
with impingement syndromes, tendinosis long head biceps tendon without tear or
subluxation, and intact pulley structures. Id.
On November 11, 2014, orthopedic surgeon Robert Bauer, M.D. (“Dr. Bauer”),
performed an independent orthopedic medical examination on Roth whom he found to
have degenerated discs in the cervical and lumbar spine, left knee tear medial
meniscus, and right should impingement and glenoid cyst. R Dkt. 77-4 at 15-16. Dr.
Bauer reported Roth stated he “had to modify his work activities.” Id. at 15. Based on a
review of Roth’s medical records from November 15, 2011, and a physical examination
of Roth, Dr. Bauer assessed Roth’s overall prognosis as “fair,” stating Roth’s diagnosis
and symptoms are causally related to the collision, and that Roth had no history of a
preexisting or subsequent injury. Id. Dr. Bauer recommended right shoulder
arthroscopy with repair or resection of tissues, assessing Roth as not having reached
pre-accident status nor medical endpoint. Id. at 3. On the Patient History Form Roth
completed with regard to the examination, Roth indicated that his pain and numbness
were of a sudden onset after the collision. Id. at 21.
On December 12, 2014, chiropractor George Lisjak, D.C. (“Dr. Lisjak”),
performed an Independent Chiropractic Medical Evaluation on Roth. R Dkt. 77-4 at 4955. At that time, Roth complained of constant neck pain of varying intensity associated
with right upper extremity pain and paresthesia, which Roth sometimes also
experienced in his left upper extremity. Id. at 51. Roth also complained of intermittent
mid back discomfort, and constant lower back pain of varying intensity without any
radicular component. Id. After reviewing Roth’s medical history, and diagnostic
imaging test results, Dr. Lisjak diagnosed Roth with C5-C6 central to left paracentral
protrusion, C6-C7 central disc protrusion, pre-existing osteoarthritic degenerative
change of the cervical spine with associated degenerative disc disease with manifest
bulging, pre-existing minimal anterolisthesis at C5-C6 without apparent instability, and
pre-existing osteoarthritic degenerative change and degenerative disc disease of the
lumbar spine with narrowing of the disc space at L4-L5 and greater at L5-S1. Id. at 53.
Dr. Lisjak’s prognosis was poor because Roth’s full recovery from spinal injuries
attributed to the collision was doubtful. Id. at 53-54. Dr. Lisjak further opined the disc
protrusions at C5-C6 and C6-C7 appeared to be causally related to the collision “to
some degree,” noting Roth sustained a significant left upper extremity injury during his
prior motorcycle accident in 1997, and the osteoarthritic degenerative changes of the
cervical and lumbar spines, degenerative disc disease with manifest bulging and
anterolisthesis appeared to be pre-existing. Id. at 54. Roth’s causally-related disability
was assessed as “moderate” with medical end-point having been reached with regard to
chiropractic treatment for acute and sub-acute spinal injuries, but pre-accident status
not having been reached. Id.
On January 13, 2017, Dr. Bauer performed a second Independent Orthopedic
Medical Examination on Roth. R Dkt. 77-4 at 26-29. Upon reviewing Roth’s medical
history and physically examining Roth, Dr. Bauer’s impression was degenerated
cervical spine and lumbar spine with disc herniations, left knee tear medical meniscus,
right shoulder impingement with glenoid cyst. Id. at 26-27. Dr. Bauer’s overall
prognosis was fair, and Roth’s diagnoses and symptoms were found to be causallyrelated to the collision with Roth not having reached preaccident status nor medical
endpoint, and having no history of pre-existing or subsequent injury. Id. at 28.
Also on January 13, 2017, neurosurgeon Robert J. Sarnowski, M.D. (“Dr.
Sarnowski”), performed an Independent Neurosurgical Medical Evaluation on Roth
regarding Roth’s continued back and leg pain. R Dkt. 77-4 at 40-43. Dr. Sarnowski’s
diagnostic impression was lumbar discogenic disease, chronic lumbar pain, and lumbar
radiculopathy, id. at 40, for which the ultimate prognosis was guarded with Roth
remaining functional and continuing to work in a less physically demanding capacity,
and not having reached his pre-accident level. Id. at 42. Dr. Sarnowski reported Roth’s
symptoms as causally related to the collision. Id.
In a January 15, 2015 addendum to his December 12, 2014 report, Dr. Lisjak
noted that based on his recent receipt of an April 27, 2012 lumbar MRI report, Roth had
osteoarthritic degenerative joint and disc changes at L2 through S1. R Dkt. 77-4 at 5759. At L4-L5, there is retrolisthesis and a large central to left paracentral disc extrusion
with causal migration resulting in mild spinal canal narrowing and moderate
encroachment of the L4 foramina. Id. At L5-S1, there is retrolisthesis and a moderate
central to predominantly left paracentral disc extrusion resulting in borderline central
canal stenosis and narrowing of the L5 foramina with the disc abutting the S1 nerve
roots. Id. According to Dr. Lisjak, this lumbar MRI report “explains [Roth’s] complaint of
lower back pain.” Id. Dr. Lisjak added the L4-L5 disc extrusion and L5-S1 disc
extrusion to his earlier diagnosis, stating it was possible the lumbar disc extrusions were
causally related to the collision, id., and the additional diagnosis established Roth had
“incurred a moderate to marked causally related spinal disability.” Id. at 58.
Nevertheless, Dr. Lisjak also stated that absent prior imaging, “it is impossible to know if
and to what extent [Roth’s] disc issues were pre-existing, especially in light of a prior
motorcycle accident and his profession as a contractor.” Id. No further significant
functional improvement was anticipated from continued chiropractic care. Id.
In a report by Defendants’ expert witness, John Leddy, M.D. (“Dr. Leddy”),
Professor of Clinical Orthopedics and Rehabilitation Sciences, dated December 15,
2016, R. Dkt. 77-7 at 2-7, Dr. Leddy concluded, based on the objective medical
evidence in the record and review of Roth’s diagnostic studies, that as a result of the
collision, Roth “may have sustained a left knee medial meniscal tear,” and “sustained
temporary cervical and lumbar muscle strains,” but that
[t]here is no indication that he had any physical examination to or treatment for
his back prior to his visit with Dr. Siddiqui23 in April of 2012. At that time the
objective physical examination indicated full recovery from the muscle strains.
This is consistent with his continued work in the construction field, indicating that
he was not functionally limited after the accident.
R Dkt. 77-7 at 6.
Dr. Leddy found Roth’s medial meniscal tear had been successfully treated by surgery,
with an intact and functional ACL, and that Roth had not sustained “a significant ACL
injury” as a result of the collision. Id. According to Dr. Leddy, Roth’s spinal muscle
strains had resolved, with no physical examination ever showing evidence of cervical or
lumbar disc herniation or radiculopathy, and a nerve conduction study confirmed no
radiculopathy, but bilateral carpal tunnel syndrome for which Roth had no symptoms
early after the collision, suggesting it was not causally related to the collision, and noting
“[c]arpal tunnel syndrome is a very common overuse syndrome in persons with physical
jobs.” Id. Dr. Leddy also determined Roth’s right shoulder labral tear, revealed in the
2014 MRI, was not sustained in the collision given the earlier MRI in 2012 showed no
labral tear. Id. As such, Dr. Leddy opined the labral tear was a degenerative tear which
would not be unusual in light of Roth’s profession. Id. Roth’s medical records showing
intermittent cervical and lumbar strains after the collision were also consistent with
degeneration that could be attributed to Roth’s construction job. Id. In short, Dr. Leddy
found “no objective medical evidence that the 11/9/11 car accident directly caused
traumatic L2-3 annular bulge, L3-4 bulge, L4-5 disc extrusion, or L5-S1 disc bulge with
extrusion; traumatic anterolisthesis at C5-6 or traumatic central disc protrusions at C5-6
The record on the motions before the court is otherwise devoid of any mention of Dr. Siddiqui, including
any medical records and any indication as to whether Dr. Siddiqui is a medical doctor, or is engaged in
the practice of any specialty.
and C6-7; traumatic bilateral carpal tunnel syndrome; traumatic left knee dislocation; or
a traumatic right shoulder labral tear,” id., concluding that Roth’s prognosis relative to
the collision “was and is good.” Id.
In an April 7, 2017 affirmation, neurosurgeon Jeffrey Lewis, M.D. (“Dr. Lewis”),
who maintains he has been treating Roth for injuries sustain in the collision, avers that,
upon examining Roth on August 5, 2016, he recommended an updated MRI of Roth’s
lumbar spine for increased pain and radicular symptoms. R Dkt. 76-1 ¶¶ 1-8. That MRI
was performed on August 25, 2016, and confirmed Roth has disc herniations at L4-5
and L5-S1, as well as progression of disc bulges at L2-3 and L3-4. Id. ¶ 8. Dr. Lewis
opined Roth’s injuries are neither mild nor minimal in nature, but “quite significant in and
of themselves.” Id. ¶ 9. Because Dr. Lewis had seen no evidence that Roth was
actively treating for any neck, low back, left knee or right shoulder injuries “shortly”
before the collision, Dr. Lewis concluded that such injuries were caused by the collision.
Id. ¶¶ 10-11. Although Dr. Lewis allowed that Roth “may have some underlying
degeneration prior to the [collision], it is not uncommon for weaker discs to herniate[ ]
and/or protrude as a result of a traumatic impact, which would correlate with [the
collision].” Id. ¶ 14.
Plaintiff Roth moves for summary judgment on his claims asserted against
Defendants, arguing the evidence in the record establishes the collision is attributed to
Singh’s negligent operation of his truck, R Dkt. 71-1¶¶ 8-19, and that Roth’s resulting
injuries meet the “serious injury” threshold as required under § 5102(d), to recover for
non-economic loss based on a finding of negligence. Id. ¶¶ 20-49.24 In opposition to
summary judgment, Bauman, in her capacity as Third-Party Defendant, argues Roth
has not made a prima facie showing that he suffered a serious injury as defined under §
5102(d) as required to shift the burden of proof and survive Third-Party Defendant’s
summary judgment motion. Dkt. 74-3 at 5-18.25 Corporate Defendants, in opposing
Roth’s summary judgment, argue Roth has failed to comply with Local Rule of Civil
Procedure – W.D.N.Y. 56(a) requirement that a summary judgment movant provide a
statement of material facts as to which the movant asserts no genuine issue need be
tried, R Dkt. 77 at 22-23, that the evidence in the record fails to establish Roth sustained
a serious injury as defined under § 5102(d), id. at 23-34, and genuine issues of material
fact exist as to whether Singh or Bauman caused the collision. Id. at 36-38. In further
support of summary judgment, Roth argues all medical reports from Roth’s medical
experts were timely disclosed, controverting statements by Corporate Defendants at ¶¶
21-36 of their Statement of Material Facts (R Dkt. 77), R Dkt. 78 at ¶¶ 2-12, that in the
only written documentation of Singh’s account of the collision, Singh admits hitting
Bauman’s vehicle, thereby unequivocally establishing Singh’s liability for negligence, id.
¶¶ 13-20, and that in each independent medical examination (“IME”) report in the
record, Roth was found to have sustained permanent and significant injuries resulting in
The court notes Roth’s attorney filed no memoranda of law but only attorney affirmations.
Despite Bauman’s assertion that Roth’s alleged injuries sustained during the collision are not serious
as defined under § 5102(d), no one has asserted any conflict of interest argument for disqualification with
regard to Bauman’s position as a Third-Party Defendant represented by Ferrandino in the Roth Action,
and as a Plaintiff represented by Polak in the Bauman Action.
consequential loss of some bodily function, which injuries are causally related to the
collision. Id. ¶¶ 21-35.
Third-Party Defendant Bauman moves for summary judgment seeking dismissal
of the Third-Party Complaint against her, arguing the evidence in the record establishes
Bauman was not negligent as a matter of law. R Dkt. 70-9 at 3-11. With regard to
Bauman’s motion, Roth argues because his deposition testimony and Bauman’s
deposition testimony are consistent with Singh’s admission that Singh’s truck struck
Bauman’s vehicle, Defendants are precluded from claiming Bauman caused the
collision, Dkt. 76 ¶¶ 4-9, the medical evidence in the record establishes the injuries of
which Roth complains are causally related to the collision, id. ¶¶ 10-21, and meet the
serious injury definition under § 5102(d). Id. ¶¶ 35-47. In opposing Bauman’s summary
judgment motion, Third-Party Defendants argue there exist several issues of material
fact regarding liability for the collision, precluding summary judgment. Dkt. 77 at 3637.26
In further support of summary judgment, Bauman argues that discovery has
shown the allegations in the Third-Party Complaint against her are without any factual
basis, R Dkt. 79 at 2-3, Third-Party Plaintiffs should not be permitted to amend the
Third-Party Complaint to conform with the facts revealed during discovery, id. at 4-5,
which amendment would be so untimely as to be unduly prejudicial, id. at 5-7, and
Third-Party Plaintiffs have failed to raise any question of law or fact to defeat Bauman’s
motion for summary judgment insofar as Bauman’s motion attributes all cause for the
collision to Singh’s negligent operation of his truck. Id. at 7-8. In further support of
Roth did not file papers opposing Third-Party Defendant’s summary judgment motion but, rather, joins
in the motion. R Dkt. 76 ¶ 3.
summary judgment against Roth, Corporate Defendants argue Roth has not opposed
their summary judgment motion, R Dkt. 82 at 1-2, Corporate Defendants’ statement of
facts filed in support of Corporate Defendants’ summary judgment motion should be
deemed admitted based on Roth’s failure to comply with Local Rule 56, id. at 2-3,
Roth’s medical records fail to establish that as a result of the collision, Roth sustained a
serious injury under § 5102(d), id. at 3-4, that because Roth never disclosed Dr. Lewis
as an expert, the court must disregard the Affirmation of Dr. Lewis (R Dkt. 76-1), which,
in any event, is speculative because it fails to address Roth’s pre-existing conditions, id.
at 4-7, the opinions of Roth’s other physicians establish Roth did not sustain a serious
injury, id. at 7-8, Roth’s knee surgery does not establish a serious injury, id. at 8, Roth’s
personal affirmation is not probative as to serious injury, id. at 9-10, and Roth has failed
to cite to any law rebutting Corporate Defendants’ arguments in support of summary
judgment. Id. at 10.
Summary judgment of a claim or defense will be granted when a moving party
demonstrates that there are no genuine issues as to any material fact and that a moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003). The court is required to construe the evidence in the light most favorable to the
non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party
moving for summary judgment bears the burden of establishing the nonexistence of any
genuine issue of material fact and if there is any evidence in the record based upon any
source from which a reasonable inference in the non-moving party's favor may be
drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322;
see Anderson, 477 U.S. at 247-48 (“summary judgment will not lie if the dispute about a
material fact is "genuine," that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party”). “A fact is material if it ‘might affect the
outcome of the suit under governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35
(2d Cir. 2008) (quoting Anderson, 477 U.S. at 248). Here, for Roth to obtain summary
judgment, Roth must establish there is no genuine issue of material fact that Singh’s
negligence caused Roth to sustain a serious injury as defined under N.Y. Ins. Law §
5102(d). In contrast, summary judgment may be granted in favor of Corporate
Defendants and Third-Party Defendant only if the record establishes no material issue
of fact either that Singh was not negligent or that if Singh was negligent, that such
negligence did not cause Roth’s injuries, or that none of Roth’s injuries is serious as
defined under § 5102(d).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on’” an essential element of a
claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379
(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created
solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’
issues for trial.” Hayes v. New York City Department of Corrections, 84 F.3d 614, 619
(2d Cir. 1996). “An issue of fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133,137 (2d Cir. 2009)).
In this tort action, because the collision occurred in New York, New York law
applies, Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999) (in tort action, New
York law applies the law of the place of the tort), and the parties do not argue otherwise.
Failure to Comply with Local Rule 56
Preliminarily, the court considers Corporate Defendants’ arguments that Roth’s
failure to comply with Local Rule of Civil Procedure 56(a) (“Local Rule 56(a)”), both in
failing to submit a statement of undisputed fact in support of Roth’s summary judgment
motion, Dkt. 77 at 22-23, as well as in opposing Corporate Defendants’ summary
judgment motion, R Dkt. 82 at 2-3, which Roth does not dispute, requires denying
Roth’s summary judgment motion and deeming admitted the statement of facts
Corporate Defendants submitted in support of their summary judgment motion.
Pursuant to Local Rule 56(a)(1), a summary judgment motion filed under Fed.R.Civ.P.
56 must be accompanied by
a separate, short, and concise statement, in numbered paragraphs, of the
material facts as to which the moving party contends there is no genuine issue to
be tried. Each such statement must be followed by citation to admissible
evidence as required by Fed.R.Civ.P. 56(c)(1)(A). Citations shall identify with
specificity the relevant page and paragraph or line number of the evidence cited.
Failure to submit such a statement may constitute grounds for denial of the
Local R. Civ. P. – W.D.N.Y. Rule 56(a)(1).
The papers opposing a motion for summary judgment shall include a response to
each numbered paragraph in the moving party’s statement, in correspondingly
numbered paragraphs and, if necessary, additional paragraphs containing a
short and concise statement of additional material facts as to which it is
contended there exists a genuine issue to be tried. Each numbered paragraph in
the moving party’s statement of material facts may be deemed admitted for
purposes of the motion unless it is specifically controverted by a correspondingly
numbered paragraph in the opposing statement.
Local R. Civ. P. – W.D.N.Y. Rule 56(a)(2).
Although the court does not condone Roth’s noncompliance with Rule 56(a), “[a]
local rule imposing a requirement of form must not be enforced in a way that causes a
party to lose any right because of a nonwillful failure to comply.” Fed.R.Civ.P. 83(a)(2);
Buck v. Cleary, 345 Fed.Appx. 660, 662 (2d Cir. Sept. 14, 2009) (finding district court
abused discretion in deeming admitted defendants’ statement of material facts based on
plaintiff’s failure to separately respond to each stated fact as required under applicable
local rule, vacating lower court’s decision to do so in the absence of any evidence that
the failure to comply was willful, and remanding that portion of the judgment based on
such deemed admitted facts). Similarly, nothing in the instant record establishes, or
even suggests, Roth’s failure to formally comply with Local Rule 56(a)(1) and (2) was
willful. Accordingly, despite Roth’s undisputed failure to comply with Local Rule 56(a)(1)
and (2), the court, in the exercise of its discretion, should neither deny summary
judgment to Roth, nor deem admitted Corporate Defendants’ statement of undisputed
facts, based on the non-compliance.
Request to Amend
Third-Party Plaintiffs allege that “Third Party Defendant BAUMAN abruptly and
without warning drove into the far right lane and failed to observe Co-Defendant SINGH
who was already engaged in a lane change into the far right lane.” Third-Party
Complaint (R Dkt. 4) ¶ 14. At his August 12, 2016 deposition, however, Singh testified
that at all times relevant to the collision, Singh was traveling in the center lane of I-190,
R Dkt. 75-1 at 3, 8, 15, 16, and repeatedly denied that the collision occurred while Singh
was attempting to change lanes, id. at 4, 8, or that Singh told Plaintiffs he was
attempting to change lanes. Id. at 5, 7-8. In papers filed opposing Bauman’s summary
judgment motion, Third-Party Plaintiffs request permission to amend ¶ 14 of the ThirdParty Complaint to conform with discovery, explaining their contribution and
indemnification claims raised against Bauman were based upon information and belief
and asserted prior to discovery, particularly Singh’s deposition testimony, which shows
an issue as to whether Bauman crossed into Singh’s lane of travel, or remained in her
lane. R Dkt. 75 at 20-21. Although not specifically discussed by Third-Party Plaintiffs, a
determination that Singh remained at all times in the center lane would establish
Bauman caused the collision, whereas a determination that the collision occurred when
Bauman veered into the center lane while Singh was engaged in a lane change, as
alleged in ¶ 14 of the Third-Party Complaint, would support a finding that both Singh
and Bauman were negligent. According to Third-Party Plaintiffs, discovery would have
been the same regardless of whether or not the third-party claim asserted Bauman
veered into the center lane in which Singh was traveling. Id. at 21-22. Bauman
opposes the request to amend on the basis that the request has not been presented to
the court as a formal motion, accompanied by a proposed amended complaint as
required under Rule 15, R Dkt. 79 at 4-5, such that the application for amendment is
defective and must be denied. Id. at 5. Bauman further argues that even if the court
considers Third-Party Plaintiffs’ request to amend, the request must be denied because
such amendment is unduly delayed as made three months after the deadline for
discovery, and would result in prejudice to Bauman. Id. at 5-7.
Initially, assuming, arguendo, the District Judge agrees with the undersigned’s
recommendation that summary judgment be granted in favor of Corporate Defendants
based on Roth’s failure to establish a genuine issue of fact as to whether he sustained a
serious injury as defined under § 5102(d), Bauman’s request to amend is DISMISSED
as moot. Alternatively, the court addresses the request to amend in the interest of
completeness should the District Judge disagree with the recommendation to grant
Corporate Defendants’ summary judgment motion.
Despite no formal motion to amend the Third-Party Complaint having been filed,
the lack of a formal motion does not require the district court deny leave to amend, with
the decision to grant or deny remaining within the court’s discretion. O’Hara v. Weeks
Marine, Inc., 294 F.3d 55, 68 and n. 6 (2d Cir. 2002). Nevertheless, “[o]nce the
deadline for amendment in a scheduling order has passed, leave to amend may be
denied ‘where the moving party has failed to establish good cause.’” Presbyterian
Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 267 (2d Cir. 2009) (quoting
Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)), which “‘finding of
‘good cause’ depends on the diligence of the moving party,’” Id. Of further relevance is
whether the amendment would significantly prejudice the nonmoving party. Kassner v.
2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007). The court is “particularly
likely to find prejudice where the parties have already completed discovery and the
defendant has moved for summary judgment.” Werking v. Andrews, 526 Fed.Appx. 94,
96 (2d Cir. May 3, 2013) (denying motion to amend where plaintiff failed to show
diligence in waiting more than two months after discovering, through deposing
defendants, relevant facts, requested amendment would have required substantial
additional discovery which had closed, and defendants had moved for summary
judgment, such that amendment would unduly prejudice defendants).
Here, according to the February 11, 2014 Scheduling Order (B Dkt. 18), motions
to amend the pleadings were to have been filed by March 20, 2014, more than three
years prior to Third-Party Plaintiff’s request to amend. Although “‘a finding of ‘good
cause’ depends on the diligence of the moving party,’” Presbyterian Church of Sudan,
582 F.3d at 267, and Third-Party Plaintiffs explain that the Third-Party Complaint was
filed prior to discovery, and Third-Party Plaintiffs were unaware until after Singh’s
August 12, 2016, deposition that Singh denied leaving the center lane in which he was
traveling northbound on I-190, thereby placing full responsibility for the collision on
Bauman, R Dkt. 75 at 21-22, the subsequent delay of nearly eight months before
informally requesting to amend, in papers filed April 7, 2017 opposing summary
judgment, fails to establish good cause for delaying moving to amend prior to the cut-off
for filing amendments. Nevertheless, the court must also consider whether any
prejudice would befall any parties if the late amendment of pleadings is allowed.
Kassner, 496 F.3d at 244. Third-Party Plaintiffs maintain that discovery would have
been conducted in the same manner regardless of whether Singh was alleged to have
remained in the center lane, or alleged to have commenced changing lanes at the time
of the collision, such that permitting the requested amendment will not result in any
prejudice, id., and Roth does not otherwise argue that any serious prejudice would
ensue should Third-Party Plaintiffs be permitted to amend the Third-Party Complaint to
conform with facts only revealed during discovery. Moreover, despite failing to formally
move to amend and, hence, failing to file a proposed amended third-party complaint, it
is possible to discern from Third-Party Plaintiff’s papers precisely what they intend to
allege with regard to Bauman’s possible negligence relative to the collision.
Third-Party Plaintiffs’ request for leave to amend ¶ 14 of the Third-Party
Complaint is, alternatively, GRANTED.
Both Roth and Bauman move for summary judgment on the issue of negligence
arguing the undisputed facts establish, as a matter of law, that Bauman was not
negligent and that Singh was solely responsible for the collision. R Dkt. 70-9 at 3-11; R
Dkt. 71-1 ¶¶ 8-19.27 In particular, Roth argues that his deposition testimony was
consistent with Bauman’s deposition testimony, both of whom maintain Bauman’s
vehicle remained in the right-hand land of I-190, with Singh’s truck twice making contact
with Bauman’s vehicle when Singh was engaged in changing from the center lane to the
right-hand lane from which Singh intended to exit from I-190 to the Peace Bridge
leading from the United States to Canada. R Dkt. 71-1 ¶¶ 9-10, 14. Roth also points to
Bauman’s assertion that she did not think it was necessary to obtain a police report
because Singh admitted hitting Bauman’s vehicle, id. ¶ 8, the physical damage caused
Roth and Bauman also join in Third-Party Defendant’s motion (R Dkt. 70) seeking summary judgment
on the issue of negligence (R Dkt. 76).
by the collision, i.e., scratches on the rear, driver-side panel of Bauman’s vehicle and
damaged lug nuts on Singh’s truck’s front steer tire, and Singh’s unsworn statement in
which Singh states he “hit” Bauman’s vehicle, as supporting only a finding that Singh is
liable for the collision. Id. ¶¶ 11, 15. Bauman argues the evidence establishes she
never left the right-hand lane of I-190, R Dkt. 70-9 at 4, a fact to which both Bauman
and Roth consistently testified at their respective depositions, id. at 4-5, Singh
apologized for the collision, admitting the collision was his fault, id. at 4, and the
damage to Bauman’s vehicle was consistent with being hit from behind by Singh’s truck.
Id. at 5. According to Bauman, Singh’s deposition statement that when he attempted to
turn the wheel of his truck, the truck would not move, causing Singh to turn the wheel
harder, hitting Bauman’s vehicle, which Singh never saw prior to the collision, further
placing responsibility for the collision on Singh. Id. at 6-7.
New York law provides that “a plaintiff must establish three elements to prevail
on a negligence claim: ‘(1) the existence of a duty on a defendant’s part as to the
plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.’”
Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000) (quoting Akins v. Glen
Falls City School District, 424 N.E.2d 531, 535 (N.Y. 1981))). Following an automobile
collision, the ticketing of a driver for a violation of New York Vehicle and Traffic Law
(“N.Y. Veh. & Traf. Law”), generally provides prima facie entitlement to judgment as a
matter of law against the ticketed driver. See, e.g., Reyes-Diaz v. Quest Diagnostic
Inc., 999 N.Y.S.2d 98, 99 (2d Dep’t 2014) (by demonstrating defendant violated N.Y.
Veh. & Traf. Law §§ 1128(a) and 1163, plaintiff established prima facie entitlement to
judgment as a matter of law). In the instant case, that the collision occurred when either
or both vehicles changed lanes strongly suggests either Singh or Bauman, or both,
violated N.Y. Veh. & Traf. Law § 1128, which, as relevant, provides that “[w]henever any
roadway has been divided into two or more clearly marked lanes for traffic . . . [a]
vehicle shall be driven as nearly as practicable entirely within a single lane and shall not
be moved from such lane until the driver has first ascertained that such movement can
be made with safety.” N.Y. Veh. & Traf. Law § 1128(a). Nor has any party asserted or
submitted evidence regarding any violation of N.Y. Veh. & Traf. Law § 1163(d)’s
requirement that a driver of an automobile signal prior to changing lanes. No law
enforcement officer, however, responded to the scene of the collision and neither Singh
nor Bauman was ticketed for any traffic-related offense so there is no presumed
negligence on either part.
Bauman argues, R Dkt. 70-9 at 9-11, that because the allegation in the ThirdParty Complaint that “Third-Party Defendant BAUMAN abruptly and without warning
drove into the far right lane and failed to observe Co-Defendant SINGH who was
already engaged in a lane change to the far right lane,” Third-Party Complaint ¶ 14 (“ ¶
14”), is contradicted by Singh’s sworn deposition testimony that he never told anyone
the collision occurred while he was changing lanes, the court is required to accept
Singh’s sworn deposition testimony, and thereby reject Third-Party Plaintiffs’ allegations
in ¶ 14 such that there is no factual basis upon which to find Bauman had veered into
Singh’s lane when the collision occurred, requiring dismissal of the Third-Party
Complaint. In support of this argument, Bauman relies on various cases establishing
the “well-settled Second Circuit rule ‘that a party’s affidavit which contradicts his own
prior deposition testimony should be disregarded on a motion for summary judgment.”
Id. at 9-10 (quoting Better Environment, Inc. v. ITT Hartford Ins. Group, 96 F.Supp.2d
162, 168 (N.D.N.Y. 2000) (citing cases). This argument fails for several reasons.
Although Bauman is correct that “a party may not create an issue of fact by submitting
an affidavit in opposition to a summary judgment motion that, by omission or addition,
contradicts the affiant’s previous deposition testimony,” Crawford v. Franklin Credit
Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014), here, the record is devoid of any
affidavit from Singh made either before or after Singh’s deposition testimony. As such,
there can be no inconsistency between Singh’s sworn deposition testimony and any
affidavit by Singh. Furthermore, even if ¶ 14 of the Third-Party Complaint were
construed as the equivalent of an affidavit, because Singh has not been joined
Corporate Defendants as a Third-Party Plaintiff, none of the allegations of the ThirdParty Complaint, including those of ¶ 14, is attributable to Singh.28 Accordingly, this
aspect of Bauman’s motion for summary judgment on the issue of negligence should be
With respect to the remaining arguments advanced in support of summary
judgment on the issue of whether Singh’s negligence caused the collision such that
Singh is liable for the resulting injuries sustained by Roth and Bauman, both Roth and
Bauman overlook the distinct possibility that despite the evidence in the record pointing
towards Singh’s possible negligence, Bauman may have been either solely or
contributorily liable for the collision.
Singh’s cross-claims against Bauman for contribution and indemnification, asserted in Singh’s Answer,
R Dkt. 27, are devoid of any allegation that Singh was engaged in a lane-change at the time of the
In short, in contrast to the allegation in § 14, to which Singh is not a party, that
the collision occurred when Bauman veered into Singh’s lane while Singh was
attempting to change from the center lane into the right-hand lane in preparation for
exiting I-190 at the Niagara Street exit, Singh steadfastly testified at his deposition that
he was not attempting to change lanes when the collision occurred but, rather, was
driving solely in the center lane when he heard a noise subsequent to which Singh
observed Bauman’s vehicle pull over to the shoulder at the right of the roadway, and
Singh then pulled his truck over behind Bauman’s vehicle. R Dkt. 70-5 at 19-21.
Bauman, however, is unwavering in her assertion that while she maintained her position
in the right-hand lane of I-190, Singh moved from the center lane into the right-hand
land, striking Bauman’s vehicle twice. R Dkt. 70-4 at 4-5. Further, Roth’s recollection at
his deposition of whether, at the time of the collision, Bauman was driving solely in the
right-hand lane is equivocal; specifically, in response to the query, “did Ms. Bauman
remain in the curbside lane from the time that she entered the 190 headed north up until
the accident took place?” Roth responded, “I don’t want to say for sure. I want to say
yes, but again, it’s five years. She might have - - I don’t know.” R Dkt. 70-3 at 6. Roth
also testified that at the time of the collision, Bauman’s vehicle was “starting to go ahead
of it [Singh’s truck].” Id. at 19.29
On this record, summary judgment should be DENIED as to the issue of
negligence and liability for the collision.
The court notes Plaintiffs’ attempt to tag Singh with negligence based solely on Singh’s unsworn
statement, which statement Singh prepared with help because Singh is not fully proficient in the English
language is somewhat lacking, yet fail to similarly accept as correct Singh’s reference in the same
unsworn statement to the fact that neither Bauman nor Roth sustained any injuries as a result of the
collision. The precise language in the unsworn statement ignored by Plaintiffs includes Singh’s
statement, “No injuries at all. Car was driveable and people were fine. They didn’t call police or
ambulance because they were fine and had no real damage to either vehicle.” Dkt. 70-7 at 4-5.
As stated, Roth and Corporate Defendants seek summary judgment on the issue
of whether Roth sustained a serious injury under § 5102(d).30 To obtain summary
judgment on their respective motions on Roth’s serious injury claim under § 5102(d),
Roth has the initial burden of establishing by competent medical evidence that he
sustained a “serious injury” within the meaning of § 5102(d), see McHugh v. Marfoglia,
885 N.Y.S.2d 550, 551 (4th Dep’t 2009) (reversing lower court’s denial of plaintiff’s
partial summary judgment motion on threshold issue of serious injury where plaintiff’s
objective medical evidence showed plaintiff suffered spine injury requiring surgery and
resulting in permanent loss of ranger of motion (citing Toure v. Avis Rent A Car Sys.,
774 N.E.2d 1197, 1201-02 (N.Y. 2002))), whereas Corporate Defendants’ initial burden
is establishing by competent medical evidence that Roth did not sustain such an injury.
See Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010) (recognizing threshold
issue on defendant’s summary judgment motion on § 5102(d) serious injury claim is
whether the plaintiff sustained a serious injury within the meaning of § 5102(d) (citing
Licari v. Elliott, 441 N.E.2d 1088 (N.Y. 1982))). In attempting to establish the plaintiff’s
injuries are not serious within the meaning of § 5102(d), a defendant can rely on “the
affidavits or affirmations of medical experts who have examined the plaintiff and
concluded that no objective medical findings support the plaintiff’s claim.” Grossman v.
Wright, 707 N.Y.S.2d 233, 237 (2d Dep’t 2000). Although generally, a physician’s
opinion is admissible as evidence only “when subscribed and affirmed by him to be true
Although Third-Party Defendant Bauman argues in opposition to Roth’s summary judgment motion that
Roth cannot establish a serious injury under § 5102(d), Bauman’s motion seeks summary judgment only
on the issue of negligence, yet Bauman argues in opposition to Roth’s summary judgment motion that
Roth did not sustain the requisite serious injury.
under penalties of perjury,” N.Y.Civ.Prac.L.&R 2106(a), the defendant may rely on
unsworn medical records provided by the plaintiff to the defendant, although in doing so,
the defendant opens the door for the plaintiff to also rely upon the same, unsworn
records in opposing summary judgment. Kearse v. New York City Transit Authority, 789
N.Y.S.2d 281, 283-84 & n. 1 (2d Dep’t 2005) (citing cases). See also Yong Qin Luo,
625 F.3d at 777 (in establishing its prima facie case, a defendant may rely upon the
plaintiff’s unsworn treatment records, but to rebut the defendant’s showing, the plaintiff
must provide affidavits, affirmations or other sworn statements). Upon establishing
such a prima facie case, the burden shifts to the opposing party to point to evidence
showing a genuine issue of material fact on this issue. Licari, 441 N.E.2d at 1091.
Furthermore, the “[p]laintiff must present objective proof of injury, as subjective
complaints of pain will not, standing alone, support a claim for serious injury.” Yong Qin
Luo, 625 F.3d at 777.
In support of his summary judgment motion, Roth asserts that his medical
records conclusively establish Roth suffered a serious injury as defined under New
York’s No-Fault Insurance Law, N.Y. Ins. Law § 5102(d).31 R Dkt. 71-1 ¶¶ 21-50. In
opposition to Roth’s summary judgment motion, both Bauman and Corporate
Defendants argue that Roth’s injuries do not constitute a “serious injury” under §
5102(d). R Dkt. 74-3 at 7-18 (Bauman); R Dkt. 77 at 23-33 (Corporate Defendants). In
further support of summary judgment, Roth reiterates his assertions that his injuries
sustained from the collision are sufficiently severe as to constitute a “serious injury”
according to § 5102(d). R Dkt. 78 at 4-8. In support of their motion seeking summary
Unless otherwise indicated, references to N.Y. Ins. Law are to McKinney 1984.
judgment against Roth, Corporate Defendants argue Roth is unable establish he
sustained a “serious injury” as defined under § 5102(d), B Dkt. 55 at 12-18, or the
requisite causal connection. Id. at 10-12.32
Under New York’s Comprehensive Automobile Insurance Reparations Act,
commonly known as the “No-Fault Insurance Law,” automobile owners in New York are
required to carry automobile insurance compensating injured parties for “basic
economic loss” caused by the use or operation of the automobile within New York,
regardless of fault. Pommells v. Perez, 830 N.E.2d 278, 280 (N.Y. 2005) (citing N.Y.
Ins. Law §§ 5102(a), 5103). Under the No-Fault Law, a plaintiff may not sue to recover
for basic economic losses such as unreimbursed medical expenses, lost wages or
property damage, unless such losses exceed $ 50,000. N.Y. Ins. Law § 5102(a).
Further, “[o]nly in the event of ‘serious injury’ as defined in the statute, can a person
initiate suit against the car owner or driver for damages caused by the accident.” Id.
(quoting N.Y. Ins. Law § 5104[a]). As such, “No-Fault thus provides a compromise:
prompt payment for basic economic loss to injured persons regardless of fault, in
exchange for a limitation on litigation to cases involving serious injury.” Id. (underlining
added; citing Montgomery v. Daniels, 340 N.E.2d 444 (N.Y. 1975)).
“By enacting the No-Fault Law, the Legislature modified the common-law rights
of persons injured in automobile accidents to the extent that plaintiffs in automobile
accident cases no longer have an unfettered right to sue for injuries sustained.” Licari v.
Elliott, 441 N.E.2d 1088, 1091 (N.Y. 1982) (citing Montgomery v. Daniels, 340 N.E.2d
444, 453-54 (N.Y. 1975). In particular,
Roth has not separately responded to Corporate Defendants’ summary judgment motion.
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) (“§ 5104(a)”).
“Thus, to the extent that the Legislature has abrogated a cause of action, the issue is
one for the court, in the first instance where it is properly raised, to determine whether
the plaintiff has established a prima facie case of sustaining serious injury.” Licari, 441
N.E.2d at 1091. As such, it “is incumbent upon the court to decide in the first instance
whether plaintiff has a cause of action to assert within the meaning of the statute,” id.,
and “[i]f it can be said, as a matter of law, that plaintiff suffered no serious injury within
the meaning of [§ 5102(d)], then plaintiff has no claim to assert and there is nothing for
the jury to decide.” Id. at 1092.
As relevant, a “serious injury” is defined as
A personal injury which 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 determinable 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).
“There can be little doubt that the purpose of enacting an objective verbal
definition of serious injury was to ‘significantly reduce the number of automobile
personal injury accident cases litigated in the courts, and thereby help contain the nofault premium.’” Licari v. Elliott, 441 N.E.2d 1088, 1091 (N.Y. 1982) (quoting
Memorandum of State Executive Dep’t, 1977 McKinney’s Session Laws of N.Y., p.
2448). “While it is clear that the Legislature intended to allow plaintiffs to recover for
noneconomic injuries in appropriate cases, it had also intended that the court first
determine whether or not a prima facie case of serious injury has been established
which would permit a plaintiff to maintain a common-law cause of action in tort.” Id.
Accordingly, in the instant case, to establish a “serious injury,” Roth must submit
medical evidence demonstrating at least one of the nine categories of serious injury
specified under § 5102(d). Here, Roth specifies that his injuries meet four of §
5102(d)’s nine categories of serious injury, including (1) a significant limitation of use of
a body function or system; (2) permanent consequential limitation of use of a body
organ or member; (3) permanent loss of use of a body organ, function, member or
system; and (4) medically determined injury or impairment of a non-permanent nature
which prevented Roth from performing substantially all of the material acts constituting
his usual and customary daily activities for at least 90 of the 180 days immediately
following the collision. R Dkt. 71-1 ¶ 39; R Dkt. 74-1 at 10; R Dkt. 77-8 at 10; B Dkt. 556 at 10. In general, Roth seeks to recover for injuries to his cervical and lumbar spines,
left knee, and right shoulder.33 The court examines whether the filed medical records
In particular, the various injuries Roth alleges resulted from the collision include:
• straightening of the cervical lordosis;
• straightening of the lumbar lordosis
• L2-3 annular bulge;
• L3-4 annular bulge;
• L4-5 partial disc space collapse and disc extrusion with caudad migration encroaching on the
• L5-S1 significant disc space collapse and bulge with extrusion abutting S1 nerve roots;
• anterolisthesis at C5-6;
• central disc protrusions at C5-6 and C6-7, C4-5 and C6-7 canal caliber is borderline;
• cyst formation at C5-6;
would support a reasonable jury’s finding that any of these injuries Roth allegedly
suffered qualifies as a serious injury under any one of the four categories on which Roth
Adequacy and Disclosure of Roth’s Medical Records
Preliminarily, the court addresses Corporate Defendants’ contention that Roth’s
medical reports and medical experts, including Drs. Sarnowski, Lisjak, and Bauer, were
inadequately and untimely disclosed requiring such medical evidence be stricken under
Fed.R.Civ.P. 37(c)(1). R Dkt. 77 at 23-26. In support of this argument, Corporate
retrolisthesis at L4-5 and L5-S1;
hypertrophic change at the right AC joint and lateral acromial downsloping and mild
numbness and tingling in the hands;
popping in left knee;
large bucket handle tear of the medial meniscus with fragment flapped laterally;
joint effusion in left knee;
bilateral carpal tunnel syndrome;
left knee dislocation and tear of medial cartilage or meniscus curren;
cervical and lumbar intervertebral disc displacement;
clicking in neck;
right shoulder pain, tenderness and stiffness;
right shoulder prominent sublabral recess;
right rotator cuff tendonitis;
left knee effusion, tenderness, weakness and limited range of motion;
left knee locking, popping and swelling;
difficulty with ambulation;
inability to bend left knee;
knee surgery on February 7, 2012;
crepitation of the right shoulder;
left knee torn medial meniscus and partial tear anterior cruciate ligament;
right prominent anteroinferior labral tear, Perthes type, with periosteal elevation and a para
possible bony Bankart injury in right shoulder;
tendonitis and articular surface partial thickness tearing of fibers of the infraspinatus over the
outlet narrowing beneath the AC joint lateral acromion and injury edema in the anterior
myotendinous junction of the supraspinatus.
R Dkt. 77-8 at 4-6.
Defendants reference Roth’s failure to identify any experts in responding to Corporate
Defendants’ interrogatory request, responding instead that “[t]he Plaintiff has not yet
retained an expert witness and will supplement his response to this demand when
appropriate.” See R Dkt. 77-8, Interrogatory 18. In opposition, Roth points to his
attorney’s February 5, 2015 e-mail to Mary Jones, Esq. of counsel with Corporate
Defendants’ attorneys Wilson, Elser, Moskowitz, Edelman and Dicker, LLP, and a
separate “Expert Disclosure” in which Roth identifies Drs. Bauer and Lisjak as expert
witnesses, and provides No-Fault IME reports and curriculum vitae for both.34 R Dkt, 78
¶¶ 5-7 (citing R Dkts. 80-1 and 80-2). Corporate Defendants maintain, without
reference to any case law, Roth’s disclosure by e-mail on February 5, 2015, did not
comply with Fed.R.Civ.P. 26(a)(2) (“Rule 26(a)(2)”), regarding expert witness
disclosures.35 R Dkt. 82 at 7 n. 2. Corporate Defendants further object to Roth’s recent
disclosure of Dr. Lewis, who Roth first revealed as expert witness in arguing in further
support of Roth’s summary judgment motion, as untimely disclosed, R Dkt. 82 at 4-5, an
assertion to which Roth has not responded.
With regard to Drs. Bauer and Lisjak, Corporate Defendants have neither
disputed receiving Roth’s “Expert Disclosure,” dated February 5, 2015, R Dkt. 80-2, nor
explained why such disclosure, which unequivocally states both Bauer and Lisjak are
expected to testify as experts at trial, and include copies of their respective reports and
curriculum vitae, as required under Rule 26(a)(2)(B)(i), (ii), (iii), and (iv), are insufficient
disclosures. The disclosures do not, however, contain any list of other cases in which
The court notes the Second Amended Scheduling Order filed October 17, 2016 (R Dkt. 56), set
October 28, 2016, as the deadline for Plaintiff to identify expert witnesses.
Roth submits no evidence establishing Drs. Sarnowski or Lewis were timely identified as expert
witnesses, a situation which is not further discussed by Corporate Defendants.
Drs. Bauer and Lisjak, during the previous four years, have testified as experts at trial or
by deposition, as required under Rule 26(a)(2)(B)(v), nor any statement of
compensation to be paid for such testimony in accordance with Rule 26(a)(2)(B)(vi).
Despite the apparent deficiencies, however, Corporate Defendants have neither moved
to compel Roth to provide the missing information nor formally moved to strike the
As relevant here, under Fed.R.Civ.P. 37 (“Rule 37”), a party who fails to properly
identify an expert witness under Rule 26(a), is precluded from relying on that witness’s
testimony “unless the failure was substantially justified or harmless.” Fed.R.Civ.P.
37(c)(1). “Rule 37(c) is designed to prevent the ‘sandbagging’ of an opposing party with
new evidence.” Piccone v. Town of Webster, 2011 WL 3322550, at * 5 (W.D.N.Y. Aug.
2, 2011) (quoting CSC Holdings, Inc. v. Berube, 2004 WL 3541331, at *3 (E.D.N.Y. July
7, 2004) (Rule 37(c)(1) is “designed to avoid . . . gamesmanship . . . [and] . . . ‘to
provide a strong inducement for disclosure of Rule 26(a) material.’” (quoting Hein v.
Cuprum, S.A. de C.V., 53 Fed.Appx. 134, 136 (2d Cir. 2002)))). The severity of
exclusion under Rule 37(c)(1) “is softened by the proviso that the penalty should not
apply if the offending party’s failure to disclose was ‘substantially justified.’” Id. (quoting
Berube, 2004 WL 3541331 at * 3). Nevertheless, “[e]ven if ‘the failure was not
substantially justified the exclusion should not apply if the failure was harmless.’” Id.
With regard to Dr. Sarnowski and Dr. Lewis, the record is devoid of any indication
the identity of either doctor was disclosed prior to the instant motion, nor has Plaintiff
provide any curriculum vitae, list of other cases in which either doctor has testified, or
any statement regarding compensation to be paid to either doctor for their report and
testimony. The late disclosure of these physician’s identity combined with Plaintiff’s
utter failure to comply with any of Rule 26(a)(2)(B)’s other required disclosures requires
the court strike the reports. See Softel, Inc. v. Dragon Med. & Scientific
Communications, Inc., 118 F.3d 95, 961 (2d Cir. 1997) (holding district court did not
abuse discretion by precluding plaintiff’s expert witness’s testimony who was not timely
designated as a witness, and defendant had no time to counter evidence).
With regard to the reports of Drs. Bauer and Lisjak, however, while the court
does not condone the presentation of deficient expert reports that fall short of full
compliance with Fed.R.Civ.P. 26(a)(2)(B)’s requirements, these reports are in
substantial compliance with Rule 26(a)(2)(B), and Corporate Defendants have failed to
demonstrate any prejudice or harm caused by such shortcomings, such that the court,
in its discretion, will not strike them. See Heim, 53 Fed.Appx. at 136-37 (affirming
district judge’s decision, in his discretion, not to strike expert reports that failed to strictly
comply with Rule 26(a)(2)(B)’s requirements absent any prejudice to plaintiff by the
asserted nondisclosure). Corporate Defendants’ request to strike Roth’s expert reports
for noncompliance with Rule 26 is DENIED as to Drs. Bauer and Lisjak, but is
GRANTED as to Drs. Sarnowski and Lewis.
Third Party Defendant Bauman does not seek to strike any expert witness
reports based on untimely or inadequate disclosure, but does argue that the expert
report of Dr. Lisjak is not in admissible form because Dr. Lisjak is a chiropractor and not
a medical doctor. R Dkt. 74-3 at 15-16. Roth has not responded to this argument.
Although not specifically stated, Bauman’s argument is that insofar as New York
Civ.Prac.L.& Rules § 2106(a) provides that “[t]he statement of . . . a physician . . .
authorized by law to practice in the state, who is not a party to an action, when
subscribed and affirmed by him to be true under the penalties of perjury, may be served
or filed in the action in lieu of and with the same force and effect as an affidavit,” this
rule does not pertain to chiropractors. R Dkt. 74-3 at 15 (citing Feggins v. Fagard, 860
N.Y.S.2d 346, 349 (4th Dep’t 2008) (“the affirmed report of the chiropractor is not in
admissible form inasmuch as it was not sworn to before a notary or other authorized
official”). A plain review of the report prepared by Dr.Lisjak regarding his December 12,
2014 independent chiropractic medical evaluation of Roth (“December 12, 2014 ICME”),
establishes it is made under penalty of perjury, but is not sworn. See R Dkt. 77-4 at 4955. Dr. Lisjak’s addendum to the December 12, 2014 ICME, however, is sworn to
before a notary public. Whether this is sufficient to bring the December 12, 2014 ICME
into compliance with Rule 2106(a), however, is merely academic because “New York
state procedural rules [specifically, 2106(a)] do not apply here to a federal court sitting
in diversity.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 118 (2d Cir. 2005) (citing
Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 427(1996) (“Under the Erie
doctrine, federal courts sitting in diversity apply state substantive law and federal
procedural law.”)). In contrast, Fed.R.Civ.P. 56(c) requires evidence submitted in
support of or in opposition to summary judgment be in admissible form. Under 28
U.S.C. § 1746, unsworn declarations made under penalty of perjury will suffice
whenever federal law requires evidence “be supported, evidenced, established, or
proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in
writing of the person making the same. . . .” Accordingly, that Dr. Lisjak’s December 12,
2014 ICME, made under penalty of perjury, is not sworn is irrelevant to its admissibility
in support of Roth’s motion for summary judgment, or in opposing the summary
judgment motions by Corporate Defendants and Third Party Defendant.
Permanent Loss of Use of a Body Organ, Member, Function or
Insofar as Roth maintains he suffered a serious injury based on the permanent
loss of use of a body order, member, function or system, R Dkt. 71-1 ¶ 39; R Dkt. 74-1
at 10; R Dkt. 77-8 at 10; B Dkt. 55-6 at 10, the Court of Appeals has instructed that “to
qualify as a serious injury within the meaning of the statute [§ 5102(d)], ‘permanent loss
of use’ must be total.” Oberly v. Bangs Ambulance Inc., 751 N.E.2d 457, 460 (N.Y.
2001) (specifically rejecting the partial loss of use as satisfying the requirements for a
permanent loss of use under § 5102(d)). Here, although Roth maintains he suffered a
serious injury based on the permanent loss of use of a body organ, member, function or
system, Roth never specifies the body organ, member, function or system of which Roth
maintains he has permanently lost the use, nor do Roth’s medical records indicate that
Roth incurred any such total loss of use; rather, although Roth’s medical records
establish Roth has sustained injuries to his cervical and lumbar spines, left knee and
right shoulder, even assuming, arguendo, such injuries are causally related to the
collision, nothing in the record suggests, much less establishes, Roth has lost total use
of any body part.
On the issue of whether Roth has lost total use of any body part, summary
judgment thus should be DENIED as to Roth’s motion, and should be GRANTED as to
Corporate Defendants’ motion.
Permanent Consequential Limitation of Use of a Body Organ or
Member/Significant Limitation of Use of a Body Function or System
Roth alleges numerous physical problems with his cervical and thoracic spines,
right shoulder and left knee, for which Corporate Defendants and Third-Party Defendant
contend Roth cannot establish any resulting permanency or “significant limitation of use
of a body organ, member, function or system” as required under § 5102(d). R Dkt. 77 at
23, 31-33. Corporate Defendants and Third-Party Defendant argue Roth is unable to
establish he sustained anything more than a mild, minor or slight limitation of use of any
body organ, member, function or system, which is insufficient to establish a serious
injury under § 5102(d). R Dkt. 77 at 31-34 (Corporate Defendants); R Dkt. 74-3 at 9-16
Because both a “consequential limitation” and a “significant limitation” are
similarly construed as more than a “‘minor, mild or slight limitation of use,” Gaddy v.
Eyler, 591 N.E.2d 1176, 1177 (N.Y. 1992) (quoting Licari, 441 N.E.2d 1088, 1091 (N.Y.
1982), and citing Scheer v. Koubek, 512 N.E.2d 309, 309 (N.Y. 1987)), the court
addresses both categories together. As used in § 5102(d), the word “significant” is
“construed to mean something more than a minor limitation of use.” Licari, 441 N.E.2d
at 1091. Specifically, “a minor, mild or slight limitation of use should be classified as
insignificant within the meaning of [§ 5102(d)].” Id. Accordingly, for Roth to establish a
serious injury under these categories, Roth must establish both that his injuries resulted
in limited use of a body organ, member, function or system, as well as that such
limitation is significant. Licari, 441 N.E.2d at 1092-93.
Where, as here, a plaintiff seeks recovery of damages for a serious injury based
on a soft tissue injury associated with complaints of pain and loss of range of motion,
courts are to evaluate such claims with “well-deserved skepticism.” Pommells, 830
N.E.2d at 281. Although the medical evidence establishes Roth has several herniated
and bulging discs in his lumbar and cervical spines, a diagnosis of general disc
pathology, including a bulging or herniated disc, alone is insufficient to establish a
serious injury under § 5102(d). See Pommells, 830 N.E.2d at 282 (“Proof of a herniated
disc, without additional objective medical evidence establishing that the accident
resulted in significant physical limitations, is not alone sufficient to establish a serious
injury.”). See also Toure, 774 N.E.2d at 1201 n. 4 (recognizing New York’s “Appellate
Divisions have held that a diagnosis of a bulging or herniated disc, by itself, does not
constitute a serious injury.” (citing cases)). Rather, such claims “must be supported by
medical records and may not be based solely on plaintiff’s testimony and subjective
complaints of pain.” Jones v. United States, 408 F.Supp.2d 107, 117 (E.D.N.Y. 2006).
Admissible objective evidence for this purpose includes X-rays, MRIs and CT scans,
use of a goniometer or inclinometer to measure range of motion, straight leg raising test
to detect pain, and other objective medical testing. O’Gorman v. Prus, 10 N.Y.S.3d 830,
833 (Westchester Cty. 2015). “‘MRIs, X-rays and CT scans are objective and credible
medical evidence of a serious injury because they do not rely on the patient’s
complaints of pain.’” Davis v. United States, 2012 WL 88307, at * 5 (N.D.N.Y. Jan. 11,
2012) (quoting Mastrantuono v. United States, 163 F.Supp.2d 244, 254 (S.D.N.Y.
2001)). The “extent or degree of physical limitation” posed by an injury also may be
proven by “an expert’s designation of a numeric percentage of a plaintiff’s loss of range
of motion [which] can be used to substantiate a claim of serious injury.” Toure, 774
N.E.2d 1197, 1200 (N.Y. 2002). Although “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). “[L]ess than 20% limitation has been found
insufficient to survive a motion for summary judgment.” Id. Where, however, a
decreased ROM is asserted as proof of a serious injury, the medical findings must
indicate the methodology used to calculate the reduced ROM, as well as whether such
methodology consisted of active or passive ROM tests. Watson-Tobah v. Royal Moving
& Storage, Inc., 2014 WL 6865713, at *18 (S.D.N.Y. Dec. 5, 2014) (holding medical
reports of restricted ROMs were “insufficient to overcome defendants’ prima facie
showing of the absence of a serious injury” so as to meet plaintiff’s burden in opposing
summary judgment because “there is no indication as to the methodology used to
calculate the degrees of restriction and whether the tests conducted were passive or
active range-of-motion tests.”).
The difference between “active” and “passive” range of motion tests has been
explained by one court as follows:
[T]here are two types of range of motion tests: passive and active. In performing
active range of motion tests, the patient is asked to move the body part at issue
in various directions and is asked to indicate when further movement become
restricted or painful. In the passive range of motion test, the examiner moves the
injured body part until the motion is restricted or pain is created. The doctor
measures the range of the patient’s ability to move the subject body part,
sometimes with a protractor, and then compares that to the patient’s ‘normal’
range of motion if the patient has a prior history with the doctor, or with what is
considered normal of people of the same age and sex of the patient.
The results of the passive test are based upon more objective criteria, because
the doctor controls the movements. However, the fact is that most doctors will
stop moving the patient once the patient begins to complain of pain, whether
truthful or not. Thus, courts have required that the physician conduct objective
range of motion tests, and quantify the results of the range of motion tests.
Hodder, 328 F.Supp.2d at 355 (citations and quotation marks omitted).
Courts have not hesitated to dismiss claims on summary judgment where the plaintiff’s
medical evidence fails to specify the objective medical tests performed or to explain
whether the ROM tests conducted were active or passive. See, e.g., Hodder, 328
F.Supp.2d at 356-57 (holding plaintiff failed to establish a serious injury under § 5102(d)
based on decreased ROM of spine where treating chiropractor failed to clarify whether
tests he conducted to elicit decreased ROM results were active or passive); Palasek v.
Misita, 734 N.Y.S.2d 587, 588 (2d Dep’t 2001) (affirming summary judgment for the
defendant where, inter alia, plaintiff’s treating physician’s affidavit “failed to set forth the
objective medical tests performed by the examining physician to determine that the
plaintiff suffered specifically-quantified restrictions of motion in her neck and back.”);
and Gillick v. Knightes, 719 N.Y.S.2d 335, 336 (2d Dep’t 2001) (“We have repeatedly
held that a diagnosis of loss of range of motion, because it is dependent on the patient’s
subjective expression of pain, is insufficient to support an objective finding of serious
injury.”). In the instant case, Roth has submitted medical records showing he has
decreased ROM in his cervical and lumbar spines, as well as in his right shoulder, but
not in his left knee, and Roth’s medical records fail to establish the methodology by
which the decreased ROM measurements were ascertained such that Roth cannot
establish he sustained under § 5102(d) a serious injury based on a permanent or
significant loss of use of a body part, member, function or system.
In particular, on November 11, 2014, Dr. Bauer found Roth to have significantly
decreased range of motion in his right shoulder, abduction limited to 100 degrees
compared to 170 - 180 degrees for normal abduction ROM,36 flexion limited to 100
degrees compared to 160 -180 degrees for normal flexion ROM, and external (lateral)
rotation limited to 20 degrees, with pain, compared to 80 - 90 degrees for normal
external rotation. R Dkt. 71-2 at 2-3. ROM for Roth’s cervical and lumbar spines,
however, were not specifically stated but described as “only slightly diminished,” id., and
left knee ROM was measured by goniometer at 0 to 120 degrees, only slightly
decreased from the normal ROM of 0 to 135 degrees, id, which is considered within
normal limits and sufficient for most functional activities.37 Upon examination by Dr.
Bauer on January 13, 2017, both Roth’s right shoulder abduction ROM and flexion ROM
had improved to 110, yet remained significantly less than the normal. R Dkt. 71-3 at 2.
Similarly, external rotation had improved to 30 degrees compared to 180 degrees for
normal external rotation. Id. Lumbar spine ROM, however, was found to be
approximately 50% diminished in all directions with discomfort at extremes, cervical
spine ROM was diminished 75% in all directions, left and right lateral side bending were
Although no party has submitted any evidence establishing any normal ROM, the court may take
judicial notice of well-established medical assumptions. See Miles v. Harris, 645 F.2d 122, 125 (2d Cir.
1981) (dissent) (observing juridical notice may be taken of “well established” medical assumptions). See
Fed.R.Evid. 201(b)(2) (providing court may take judicial notice of, inter alia, “a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from sources who accuracy
cannot reasonably be questioned.”). The range of motions on which the court here relies are published in
ATTORNEYS TEXTBOOK OF MEDICINE (Third Edition), LEXIS (database updated 2017). Notably,
courts within the Second Circuit have taken judicial notice of similar medical sources. See Hussain v.
Automotive Rentals, Inc., 2015 WL 9581814, at *7-8, nn. 19 and 24 (E.D.N.Y. Dec. 30, 2015) (noting
normal ranges of motion for knee flexion and shoulder flexion published in Normal Joint Range of Motion
Study, CDC, http://www.cdc.gov/ncbddd/jointrom/); see also Snyder v. Law, 2010 WL 5572768, at *1 n. 1
(N.D.N.Y. Dec. 21, 2010) (taking judicial notice of definition of mental health disorder published in
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (28th ed. 1994)).
Range of motion for knee is typically measured using a goniometer with normal ROM considered to be
0 degrees of extension (knee completely straight) to 135 degrees of flexion (knee fully bent), and with
most functional activities requiring an ROM of 0 to 117 degrees. See What Is the Normal Range of
Motion of the Knee?, available at: http://www.livestrong.com/article/401760normal-range-motion-knee/.
diminished 50% with cervical extension, and cervical flexion was diminished 25%. Id.
ROM for both left and right knees measured with goniometer at 0 to 125 degrees. Id.
Even were the court to consider the report of Dr. Sarnowski, which has been
stricken, Discussion, supra, at 43-44, such report does not advance Roth’s argument.
Specifically, Dr. Sarnowski, a neurosurgeon, examined Roth on January 13, 2017, at
which time Roth had “some restriction of shoulder full range of motion,” with a positive
straight leg raising sign on the left, indicative of a herniated disc, but sensory exam was
“grossly normal.” R Dkt. 71-4 at 1. Dr. Sarnowski’s report does not include any ROM
measurements, yet Dr. Sarnowski found Roth to be “persistently symptomatic with
regard primarily to his lumbar spine,” with “disc herniation with some lumbar stenosis
and intermittent radicular symptomatology.” Id. at 3. Roth’s “multiple problems with
regard to knees and his shoulders” were outside Dr. Sarnowski’s “area of expertise.” Id.
Roth “remains functional and continues to work in a less physically demanding capacity”
and his “ultimate prognosis has been guarded. . . .” Id.
Based on Dr. Lisjak’s December 12, 2014 ICME, Dr. Lisjak diagnosed Roth with
decreased ROM of the cervical spine, with cervical extension eliciting complaint of
crepitus, right and left rotation eliciting complaint of diffuse tightness and crepitus, and
right and left lateral flexion eliciting complaint of pulling in the opposite sides of the neck.
R Dkt. 71-5 at 3-4. With regard to Roth’s lumbar spine ROM, forward flexion was
limited to 45 degrees with discomfort, extension elicited complaints of increased lower
lumbar pressure, left and right lateral flexion elicited complaints of crepitus, and right
rotation elicited tightness complaint. Id. Roth also had positive shoulder depressor test
with bilateral upper trapezius tightness, positive Adson test on the left with crepitus and
neck pain, and positive straight leg raising test on the right with lower back pain, while
neurological examination revealed increased sensitivity of Roth’s left T6 and T8
dermatones, although all other sensory, motor, and reflex components of relevant
neurologic levels tested were adequate and muscular symmetry of the extremities was
normal. Id. at 4. Dr. Lisjak assessed Roth’s prognosis as poor. Id. at 6.
Although the medical evidence in the record specifies the method used to
determine the ROM for Roth’s left knee, the measurements obtained fails to establish
that Roth’s ROM for his left knee is sufficiently decreased to establish a serious injury.
Further, despite these medical reports indicating Roth had decreased ranges of motion
for his right shoulder, cervical and lumbar spines, in none of the reports is the
methodology by which the ranges of motion were ascertained indicated. Significantly,
as discussed, Discussion, supra, at 49-50, the medical evidence’s failure to set forth the
methodology used to determine the asserted deficits in Roth’s ROM is fatal to this
aspect of his serious injury claim based on injury to the cervical and lumbar spines and
The “90/180 Category”
There is no merit to Roth’s contention that his injuries may be considered serious
under § 5102(d)’s so-called “90/180 category,” Toure v. Avis Rent A Car Systems, 774
N.E.2d 1197, 1204 (N.Y. 2002), pursuant to which a plaintiff may recover damages if, as
a result of an accident, the plaintiff suffered a non-permanent, medically determined
injury or impairment that prevented the plaintiff “from performing “substantially all of the
material acts which constitute [the plaintiff’s] usual and customary daily activities for not
less than” 90 of the 180-day period “immediately following” the injury. N.Y. Ins. Law §
5102(d). Qualification as a serious injury under the “90/180 category” requires the nonpermanent injury to have resulted from the accident, N.Y. Ins. Law § 5104(a), and be
shown to have prevented a plaintiff “‘from performing his usual activities to a great
extent rather than some slight curtailment.’” Escoto v. United States, 848 F.Supp.2d
315, 330 (E.D.N.Y. 2012) (quoting Thompson v. Abbasi, 788 N.Y.S.2d 48, 49 (1st Dep’t
2005)). Despite lacking “the ‘significant’ and ‘consequential’ terminology” of the two
previously discussed categories, Discussion, supra, at 46-53, to establish a serious
injury under the 90/180 category, “a plaintiff must present objective evidence of ‘a
medically determined injury or impairment of a non-permanent nature.’” Toure, 774
N.E.2d at 1024 (quoting N.Y. Ins. Law § 5102[d]; and Licari, 441 N.E.2d at 1091-92).
In the instant case, the period of time with which the court is concerned with
regard to Roth establishing serious injury under the 90/180 category ends 180 days
following the November 9, 2011 collision, i.e., May 7, 2012. Roth’s own deposition
testimony was that he continued to work at his usual construction job with Cutting Edge
Contracting, a construction job Roth owns, for more than 90 of the 180 days
immediately following the collision, R Dkt. 74-2 at 3-9, is fatal to his claim. In particular,
despite asserting that he sometime had to hire others to assist with heavy lifting and
spreading poured concrete, id. at 7-8, Roth remained capable of supervising
employees, id. at 6, and performing physical tasks at heights above his shoulders
including painting, id. at 8-9, running electrical wire, id. at 9, and installing trim. Id. At
other times, Roth was able to “muscle through” tasks. Id. Nor does Roth dispute that
he continued working for at least 90 of the 180 days immediately following the collision;
rather, Roth argues that because Corporate Defendants did not have Roth examined by
a physician within the 180 days following the collision, Corporate Defendants’ expert
physician is prohibited from opining as to whether Roth “suffered a qualifying injury
under the ‘90/180’ category.” R Dkt. 71-1 ¶ 43 (citing Toussaint v. Claudio, 803
N.Y.S.2d 564 (1st Dep’t 2005)). Although courts have held that a defendant’s expert
who does not examine a personal injury plaintiff until years after an automobile accident
may not opine on the extent of a personal injury plaintiff’s injuries within the 180 days
immediately following the accident, Toussaint, 803 N.Y.S.2d at 565, where, as here,
Roth has failed to submit anything other than self-serving and conclusory statements
that fail to adequately describe the customary and usual activities which Roth alleges he
was unable to perform for more than 90 of the 180 days immediately following the
collision, the plaintiff cannot establish a significant injury under the 90-180 category.
See Buccilli v. United States, 2016 WL 4940260, at * 10 (W.D.N.Y. Feb. 3, 2016) (a
personal injury plaintiff’s deposition testimony regarding limitations attributed to a
serious injury under the 90/180 day category “must be substantiated by objective
medical proof. Self-serving statements of pain or limitation are insufficient to raise a
triable issue of fact.” (citing cases)). See also Jones v. Marshall, 47 N.Y.S.3d 791, 79394 (3d Dep’t 2017) (“objective evidence, such as medically imposed limitations upon
daily activities, must support a plaintiff’s claim under the 90/180-day category; selfserving assertions in this regard will not suffice.” (citing Clausi v. Hall, 6 N.Y.S.3d 771,
774 (3d Dep’t 2015); and Shea v. Ives, 26 N.Y.S.3d 816, 819 (3d Dep’t 2016)). Simply,
the medical records pertaining to Roth for the relevant 180-days period, i.e., November
9, 2011 through May 7, 2012, consist only of diagnostic test results, such as X-rays and
MRI studies, which contain no physician’s opinion or remark as to whether Roth was
able to perform his usual and customary activities. See Turchuk v. Town of Wallkill, 681
N.Y.S.2d 72, 73 (2d Dep’t 1998) (holding personal injury plaintiff’s self-serving
statements that she was unable to perform household chores for six months following
automobile accident, without more, were insufficient to establish the plaintiff sustained a
medically-determined injury that prevented the plaintiff from performing substantially all
of her usual and customary daily activities under the 90/180 category).
Accordingly, summary judgment should be GRANTED as to Corporate
Defendants and should be DENIED as to Roth on this aspect of his claim.
Although the undersigned is recommending granting summary judgment to
Corporate Defendants based on the failure to Roth’s medical records to establish any of
Roth’s alleged injuries meets the criteria to be considered “serious” under § 5102(d), in
the interest of completeness, whether the evidence in the record shows the existence of
any genuine issue of fact as to whether any of Roth’s alleged injuries was causally
related to the collision is addressed in the alternative.
In addition to establishing an injury meeting the criteria of a serious injury as
defined by § 5102(d), Roth must also establish the injury was caused by the collision.
Significantly, “even where there is objective medical proof, 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.” Pommells v. Perez, 830
N.E.2d 278, 281 (N.Y. 2005). As discussed, Facts, supra, at 11-13, Roth has a history
of preexisting injuries to his back, including his cervical and lumbar spines. It is
therefore incumbent upon the court to compare Roth’s post-collision condition not only
to normal ROMs for the affected joints, but also to his pre-collision ROMs. See, e.g.,
Pommells, 830 N.E.2d at 287 (“In this case, with [defendant’s] persuasive evidence that
plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff had
the burden to come forward with evidence addressing defendant’s claimed lack of
causation.”); Jones v. United States, 408 F.Supp.2d 107, 119-20 (E.D.N.Y. 2006)
(“While plaintiff has significant limitations in his neck and back functions, they are not
the result of the January 2000 car accident; rather, they emanate from pre-existing
cervical vertebrae degenerations and a disc herniation.”). Toward this end, Roth’s proof
entirely fails because “[w]here, as here, a defendant’s proof that the plaintiff has not
sustained a serious injury as a result of the motor vehicle accident at issue rests in part
on evidence that [ ]he had a preexisting condition prior to the accident, the plaintiff must
address that contention in h[is] medical reports” or face summary judgment. Brusso v.
Imbeault, 699 F.Supp.2d 567, 585-86 (W.D.N.Y. 2010) (citing cases). Fatal to Roth’s
serious injury claims based on his cervical and lumbar spine is the absence of any
evidence in the record establishing Roth’s cervical and lumbar spine ROMs prior to the
collision, such that the court is unable to compare Roth’s cervical and lumbar spine
ROMs after the collision. Furthermore, even though the observation of degenerative
changes prior to an accident does not necessarily preclude a determination that such
degenerative changes left the plaintiff more injury-prone following a subsequent
traumatic event which could aggravate preexisting injuries, see Brown v. Miller, 50
N.Y.S.3d 693, 693 (4th Dep’t 2017) (recognizing personal injury plaintiff with preexisting
degenerative changes in lumbar spine could recover for causally related serious injury
only if the plaintiff could establish collision aggravated or exacerbated preexisting
degenerative condition), more than a conclusory statement from a treating physician is
required to establish a causal connection. See Pommells, 830 N.E.2d at 286-87 (where
defendant presents evidence of preexisting degenerative disc condition causing the
plaintiff’s alleged injuries, the plaintiff, to survive summary judgment, must provide
sufficient evidence, i.e., more than a mere conclusory opinion, to refute the defendant’s
evidence and raise an issue of fact for the jury). Here, although two of Roth’s three
medical experts, including Drs. Bauer and Sarnowski, have opined that Roth’s cervical
and lumbar spine injuries are causally-related to the collision, the opinions are merely
conclusory, with no attempt to distinguish the deficit in Roth’s ROM of his cervical and
lumbar spine ROMs before and after the collision or to otherwise explain the basis for
concluding Roth’s preexisting spine conditions were aggravated or exacerbated as a
result of the collision. See R Dkt. 71-2 at 3 (Dr. Bauer commenting, without explaining
how, “Claimant’s diagnoses and symptoms are causally related to the date of accident
11/09/11.”); R Dkt. 71-3 at 3 (Dr. Bauer essentially commenting same); and R Dkt. 71-4
at 3 (Dr. Sarnowski conclusorily stating “I do feel that [Roth’s] symptoms are related to
his reported motor vehicular accident.”). On December 12, 2014, however, Roth’s
expert witness Dr. Lisjak, a chiropractor, opined that although Roth’s cervical disc
protrusions appear to be, “to some degree,” related to the collision, Roth was involved in
a prior motorcycle accident in 1997, sustaining “significant left upper extremity injury,”
and “[o]steoarthritic degenerative changes, degenerative disc disease with manifest
bulging and anterolisthesis all appear to be pre-existing.” R Dkt. 71-5 at 6. Dr. Lisjak
further commented that Roth “has evidence of pre-existing osteoarthritic degenerative
change[s] of both the cervical and lumbar spine.” Id. In his addendum dated January
15, 2015, prepared upon his subsequent receipt of the April 27, 2012 MRI of Roth’s
lumbar spine, Dr. Lisjak continues to opine only that “it is possible” that Roth’s cervical
and lumbar disc disease is causally related to the collision, id. at 9, with Roth appearing
“to have incurred a moderate to markedly causally related spinal disability,” but that
“[w]ithout prior imaging . . ., it is impossible to know if and to what extent his disc issues
were pre-existing, especially in light of a prior motor cycle accident and his profession
as a contractor.” Id. at 10. In short, Dr. Lisjak’s later comments succinctly summarize
why, in the presence of pre-existing medical conditions, it is necessary to be able to
compare the extent of a plaintiff’s physical maladies prior to an accident so as to be able
to determine what, if any, additional physical deficit can be attributed to the accident.
Accordingly, Roth has failed to establish the existence of a genuine issue of fact on
which any reasonable jury could conclude Roth’s present cervical and lumbar spine
injuries are causally related to the collision, and are not a preexisting condition, or some
aggravation of a preexisting condition. See Pommells, 830 N.E.2d at 287 (finding
defendant entitled to summary judgment where personal injury plaintiff’s own expert
opined the plaintiff suffered serious injuries causally related to the accident, yet also
averred the plaintiff’s pain and loss of ROM were also consistent with preexisting
degenerative condition and plaintiff failed to provide any evidence as to why the expert
Acknowledgment of the preexisting condition should be discounted).
With regard to Roth’s right shoulder injury, however, no preexisting injury has
been established such that Roth’s decreased ROM for his right shoulder need not be
compared to any ROM other than those considered normal for a non-injured shoulder
joint. Roth’s right shoulder diagnosis following the April 3, 2012 MRI was degenerative
disease at the AC joint, but no labral tear nor rotator cuff tear was reported.38 R Dkt. 777 at 4. Despite Dr. Bauer’s findings of significantly limited ROM, and assuming, for the
sake of this discussion, such degenerative joint disease could be of traumatic origin, the
record is devoid of any evidence showing Roth made any complaints regarding his right
shoulder until almost five months following the collision when Roth underwent an MRI of
his right shoulder. In fact, following the collision, Roth complained of pain not in his right
shoulder, but in his left shoulder for which the November 15, 2011 X-rays showed
degenerative changes of the left acromioclavicular joint. R Dkt. 77-11. Although it is
noted on the report that the April 3, 2012 MRI was conducted in connection with Roth’s
complaints of pain following the collision, B Dkt. 55-7 at 8-9, and that Roth’s right
shoulder condition deteriorated by April 29, 2014, when Roth underwent a second MRI
of his right shoulder, B Dkt. 55-8 at 5-6, requested by one Donald Douglas, M.D. (“Dr.
Douglas”),39 R. Dkt. 71-5 at 3, the initial almost 5-month gap between the collision and
Roth’s pain complaints is a sufficiently lengthy gap to constitute an intervening factor
severing any causality based on the collision. See, e.g., Barreras v. Vargas, 58
N.Y.S.3d 31, 32 (1st Dep’t 2017) (finding defendants demonstrated absence of
causation through report of orthopedist who opined plaintiff’s post-accident medical
Although the report for Roth’s April 3, 2012 MRI Right Shoulder Arthrogram was done at the request of
Dr. Hoy for “pain status post MVA,” B Dkt. 55-7 at 8-9, no evidence in the record indicates when Roth first
sought any medical treatment for complaints of pain in his right shoulder, other than a passing reference
by Dr. Lisjak in his December 12, 2014 ICME, in reviewing Roth’s medical history at a February 22, 2012
examination at Genesee Orthopedics and Sports Medicine, to Roth being “assessed with bursa and
tendon disorder of the shoulder region, unspecified. . . .” R Dkt. 71-5 at 1. Significantly, however, this
record fails to identify who made this assessment as well as whether the assessment pertains to the left,
right or both shoulders.
The record fails to further identify Dr. Douglas, including in what, if any, area Dr. Douglas specializes,
as well as when Roth began treatment with Dr. Douglas and for how long Dr. Douglas treated Roth. Nor
is there any medical report from Dr. Douglas in the record.
records showed no complaints of right shoulder pain and were inconsistent with any
claim of traumatic injury to right shoulder and plaintiff did not seek treatment for claimed
right shoulder injuries for several months after accident); Jones v. MTA Bus Co., 999
N.Y.S.2d 68, 69 (1st Dep’t 2014) (plaintiff failed to raise triable issue of fact as to
whether she sustained serious injury where post-accident hospital and medical records
showed the plaintiff made no complaints about injuries “until about five months after the
accident, which was too remote in time to establish a causal relationship.”); Henchy v.
VAS Exp. Corp., 981 N.Y.S.2d 418, 420-21 (1st Dep’t 2014) (finding no causation
established where the plaintiff’s medical records showed she did not receive treatment
for left knee injury for six months after the accident, and MRI study showing tears was
not performed until seven months after the accident and such failure to provide
contemporaneous evidence of injury was fatal to serious injury claim). But see Perl v.
Meher, 960 N.E.2d 424, 428 (N.Y. 2011) (holding evidence established genuine issue of
material fact as to whether physician’s specific, numerical range of motion
measurements of cervical and lumbar spines, made several years after automobile
accident, demonstrated plaintiff suffered from a serious injury precluding summary
judgment where initial examination of the plaintiff shortly after the accident showed
difficulty moving and diminished strength in cervical and lumbar spines). Further, the
assessment of Roth’s medical records by Defendants’ expert witness, Dr. Leddy,
Professor of Clinical Orthopedics and Rehabilitation Sciences, that the April 3, 2012
MRI showed no labral tear or rotator cuff tear, but only degenerative AC disease in
Roth’s right shoulder which is not attributed to the collision, and is further supported by
the April 29, 2014 MRI showing an inferior labral tear and cyst with a large degenerative
cyst in the glenoid and evidence of impingement, findings which are indicative of a
degenerative tear that developed after the collision and are typical conditions for
construction workers. R Dkt. 77-7 at 5-7. Roth has not provided any medical evidence
disputing Dr. Leddy’s assessment of Roth’s right shoulder condition. Accordingly,
Roth’s failure to seek treatment for his right shoulder injury for almost 5 months after the
collision constitutes a sufficient break rendering the collision too remote to have caused
the right shoulder injury, a determination that is supported by Dr. Leddy’s undisputed
Furthermore, should the District Judge disagree with the undersigned’s
determination, as discussed above, Discussion, supra, at 51-53, that the medical
evidence in the record fails to establish that Roth’s left knee injury is either permanent to
sufficiently significant to be considered a serious injury under § 5102(d), the record does
establish that Roth first complained of an injury to his left knee on November 15, 2011,
when Roth first sought treatment for injuries attributed to the collision. See R Dkt. 77-11
at 4 (noting reason for X-rays of left knee was pain since collision). Although the X-rays
taken of Roth’s left knee on November 15, 2011 showed the knee to be intact, Roth
continued to complain about pain in his left knee, R Dkt. 77-11 at 3, eventually
undergoing a left knee MRI on December 15, 2011, that showed a complex tear of the
medial meniscus, but intact ACL. R Dkt. 77-7 at 2. Even Dr. Leddy’s December 15,
2016 opinion that Roth “may have sustained a left knee medial meniscal tear” during the
collision, R Dkt. 77-1 at 6, is consistent with Roth attributing his left knee injury to the
collision. As such, Roth’s left knee injury could be found by a reasonable jury to be
causally related to the collision as required to establish a serious injury under § 5102(d).
Accordingly, Roth has failed to sufficiently distinguish the evidence in the record
of preexisting injuries to his cervical and lumbar spines from the current condition of
Roth’s cervical and lumbar spines such that the question of whether Roth’s asserted
cervical and lumbar spine injuries are causally related to the collision may not be
presented to a jury. Roth’s failure to timely seek treatment for his right shoulder injury
prevents Roth from now arguing such injury is causally related to the collision.
Nevertheless, Roth’s left knee injury could be found by a reasonable jury to be causally
related to the collision as required to establish a serious injury under § 5102(d).
Third-Party Defendant’s motion for summary judgment (Dkt. 70), should be
DENIED; Roth’s motion for summary judgment (R Dkt. 71), should be DENIED;
Corporate Defendants’ motion for summary judgment (B Dkt. 54), should be GRANTED;
Third-Party Plaintiffs’ request (R Dkt. 75 at 20-22) for permission to amend ¶ 14 of the
Third-Party Complaint is DISMISSED as moot or, alternatively, is GRANTED.
SO ORDERED, as to Third-Party Plaintiffs’
request to amend (R Dkt. 75 at 20-22) and
insofar as Corporate Defendants seek to
strike Plaintiff’s expert witnesses,
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, as to Third-Party Defendant’s
motion for summary judgment, Plaintiff’s motion for
summary judgment, and Corporate Defendants’
motion for summary judgment,
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
September 28, 2017
Buffalo, New York
ORDERED that this Report and Recommendation be filed with the Clerk of the
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
September 28, 2017
Buffalo, New York
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