Summary
holding 10%-20% limitations in ROMs were not significant
Summary of this case from Chang Que Oh v. Trujillo-MontoyaOpinion
99 CV 6903 (ILG)
January 2, 2001
Memorandum Order
This action arises from a collision involving a 1993 Toyota Camry, driven by plaintiff Craig Cooper and owned by his aunt, and a 18-wheel tractor trailer truck, driven by defendant Mark F. Dunn and owned by defendant UTP Transportation, Inc. (collectively, "defendants"). Plaintiff alleges that he sustained "serious injuries" permitting him to recover for non-economic loss pursuant to Article 51 of the New York State Insurance Law. (Summons, ¶ 13) Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons articulated below, defendants' motion is granted.
BACKGROUND
The following facts are undisputed except where otherwise indicated. On November 20, 1997, plaintiff Craig Cooper borrowed his aunt's 1993 Toyota Camry. picked up a friend who lived nearby, and set out to purchase some gasoline. While driving along Atlantic Avenue at the intersection with Boerum Street in Brooklyn, the car was hit by an 18-wheel truck driven by defendant Mark E. Dunn. (Pl.'s Dep., 45-46) About fifteen to twenty minutes after the impact, a police officer arrived at the scene and offered to call an ambulance for plaintiff. (Id. at 73) Plaintiff declined, and instead drove himself to the Emergency Room at St. John's Hospital after the necessary accident paperwork was processed. There, plaintiff was seen by a physician but discharged without admission. Plaintiff was given some packets of Advil and told to make an appointment with a doctor if he felt more pain. (Id. at 80, 81)
At the time of the accident, plaintiff was 29 years old and working as a messenger with Dinographics, where he earned a minimum wage salary. (Pl.'s Dep., 9, 13) Plaintiff delivered packages by foot and train around Manhattan for Dinographics. (Id. at 16) Following the accident, plaintiff "stayed at home for a couple of days" (id. at 81) and did not return to work. Plaintiff continued to take pain medication, but declined his aunt's recommendation that he see a doctor. (Id. at 88) Three days Later, plaintiff felt worse and made an appointment to see Lazar Y. Kaganovsky, M.D., a specialist in Internal Medicine at Ocean Avenue Medical, P.C. in Brooklyn. (Id. at 85)
In response to defendants' first set of interrogatories, plaintiff stated that he was unemployed at the time of the accident. (Defs.' Ex. E, Pl.'s Response to Defs.' First Interrogs., 11) During his deposition, however, plaintiff testified that he was in fact employed at the time of the accident, prompting plaintiffs attorney to move to amend plaintiffs pleadings to conform with the testimony. (Pl.'s Dep., 9-10)
Plaintiff visited Dr. Kaganovsky on November 24, 1997. On first examining plaintiff, Dr. Kaganovsky' s initial impression, as recorded in an unsworn note, was that plaintiff had endured:
Trauma to neck and lower back R[ule]/O[ut] Traumatic cervical and lumbar disc displacement R[ule]/O[ut] Left cervical radiculopathy Cervical strain and sprain Lumbosacral sprain and strain
The Online Medical Dictionary contains the following discussion of radiculopathy: "A herniated intervertebral disk (nucleus pulposus) is one which has become displaced (prolapsed) from its normal position in between the vertebral bodies of the spine. Herniated disks often impinge on nearby nerve structures resulting in pain and neurologic symptoms. A clinical situation where the radicular nerve (nerve root) is compressed by the prolapsed disk is referred to as a radiculopathy. This problem tends to occur most commonly in the cervical and lumbar spine." (http://www.graylab.ac.uk/omd/index.html)
(Pl.'s Ex. 2, Note dated Nov. 24, 1997) Dr. Kaganovsky gave plaintiff samples of Tylenol and Motrin and recommended a series of diagnostic tests — including X-rays, an MRI and a study known as an "EMG" to rule out nerve dysfunction — as well as a course of physical therapy. X-rays taken that day showed a "deformity of C3 through C5" and a "narrowing [of] L5-S1." (Pl.'s Ex. 2, Note dated Nov. 28, 1997)
Subsequent imaging and tests confirmed Dr. Kaganovsky's initial impressions. An MRI of the cervical spine, taken on December 8, 1997, revealed "parasagittal left sided posterior C2-3 disc herniation with extradural mass effect impinging on the left anterior funiculus of spinal cord." (Pl.'s Exh 2, Letter dated Dec. 8, 1997 from Richard DeNise, M.D.; Letter dated May 22, 1998 from Lazar Y. Kaganovsky, M.D., at 3) An MRI of the lumbar spine, taken on March 16, 1998, showed "posterior central posterior herniation of the L4-5 disk" and "no evidence of spinal stenosis." (Pl.'s Exh 2, Letter dated March 16, 1998 from Richard DeNise, M.D.; Letter dated May 22, 1998 from Lazar Y. Kaganovsky, M.D., at 3) A study of plaintiffs nerve functioning, apparently conducted on March 18, 1998, indicated "cervical radiculopathy" and a "guarded prognosis for functional recovery." (Pl.'s Ex. 2, Undated report of NCV/EMG by A. Iserlis, M.D.)
Dr. Kaganovsky's unsworn note dated March 16, 1998 actually indicates that the EMG study was scheduled for "3/16/97." Because this study likely was scheduled to take place after the entry of the note, not before, the court will infer that the year indicated in the note was simply an error. It should be noted that Dr. Kaganovsky's affidavit and unsworn reports have several inconsistencies and mistakes, a number of which have actually been corrected by hand. To the extent possible, mistakes of consequence are pointed out in this opinion.
The duration of plaintiffs physical therapy is not immediately apparent from the record. At one point during his deposition, plaintiff recalled undergoing physical therapy sessions for approximately one year — three times each week during the first few months following the accident, two times each week during the next six or seven months, and eventually only once a week. (Pl.'s Dep., 89, 105) At another point in the deposition, however, plaintiff testified that the last time he sought treatment was "like the ending of 1997, beginning of 1998." This would suggest that he was treated for three or four months at most. (Id. at 99) Unsworn notes submitted by plaintiffs own doctor reflect plaintiffs attendance at only seven sessions, the last of which took place less than four months after the accident. (Pl.'s Ex. 2, Notes dated 11/26/97, 11/28/97, 12/05/97, 12/10/97, 1/6/9[8], 3/16/98, 3/18/98 by Lazar Y. Kaganovsky, M.D.) Throughout the course of his treatment, plaintiff apparently continued to complain of neck and lower back pain and experienced some limitations in his range of motion, but notes reflect that the treatments helped alleviate his pain. (Id.)
This note actually is dated "01/06/97" but because it follows in sequential order, the court again presumes that it actually reflects a visit that took place on January 6, 1998.
While it is undisputed that plaintiff did not return to his job immediately after the accident, the duration and extent of plaintiffs alleged confinement are unclear. Between four months to a year following the accident — after conducting an active job search — plaintiff obtained a job as a messenger at Time Warner. As of the date of his deposition, April 28, 2000, plaintiff was employed as a "roller" by a company called Temco. Plaintiff works "the whole week" at this job and his duties include operating the freight elevator. (Id. at 7, 25)
On September 22, 2000, nearly three years after the accident, plaintiff returned to Dr. Kaganovsky complaining of "pain in the neck region; lower back pain; difficulty sitting, bending, walking; poor balance and coordination." (Pl.'s Ex. 2, Letter dated September 27, 2000 by Lazar Y. Kaganovsky, M.D., at 1) Dr. Kaganovsky examined plaintiff and conducted a range of motion test, leading him to conclude that: "[a]s a consequence of the car accident patient has sustained permanent cervical and lumbar injuries." (id.) Dr. Kaganovsky's diagnostic impression was:
Dr. Kaganovsky's affidavit dated October 19 2000 actually indicates that plaintiff presented with these problems when he was seen on May 27, 2000. (Pl.'s Ex. 2, 4) However, a letter submitted with his affidavit links those complaints with plaintiffs September 22, 2000 examinationnot a May 27, 2000 examination. (Pl.'s Ex. 2, Letter dated Sept 27, 2000 from Lazar Y. Kaganovsky, M.D., at 1) Because no clinical notes are attached pertaining to a May 27, 2000 visit, and presuming that Dr. Kaganovsky's unsworn letter, not his affidavit, accurately reflects the correct examination date, the court will assume that the symptoms described are based on Dr. Kaganovsky's September 22, 2000 examination of plaintiff.
S/P Traumatic disc herniation C2-3 Bilateral cervical radiculopathy S/P Traumatic disc herniation L4-5 Bilateral lumbar radiculopathy
(Id.) Dr. Kaganovsky noted that: "[p]laintiff remains partially disabled through the present time." (Id.)In addition to his present impairment, Dr. Kaganovsky indicated that "[d]ue to the permanent and progressive nature of these injuries, it is possible that [plaintiff] will develop deterioration of the cervical and lumbar disc displacements and other associated medical complications such as spinal cord injury. . . In addition to the permanency of plaintiffs pain, he will likely experience exacerbations and require periods of treatment in the future." (Id.)
Unsworn medical reports submitted with Dr. Kaganovsky's affidavit indicate that he treated plaintiff from November 24, 1997 until March 18, 1998. (Pl.'s Ex. 2) Letters by Dr. Kaganovsky dated after March 18, 1998, beginning with one dated May 22, 1998, are addressed to plaintiffs attorney and are based exclusively on plaintiffs past history. (Id.) Dr. Kaganovsky states that the next time plaintiff apparently visited him was two years later, on May 27, 2000. However, no notes or reports are included with the affidavit concerning plaintiffs condition on that day and there is no indication that Dr. Kaganovsky prescribed a course of treatment or medication on that day. Plaintiff visited Dr. Kaganovsky again on September 22, 2000, after which he was given some pain medication but no other treatment (Pl.' s Exh 2, Kaganovsky Decl., 9).
At defendants' request, plaintiff was seen by Marlon Seliger, M.D., a neurologist employed with Long Island College Hospital, on July 6, 2000. Dr. Seliger reviewed the report prepared by Dr. Kaganovsky, as well as plaintiffs MRIs and EMG and Nerve Conduction studies. He also conducted a neurological examination of plaintiff, which included examination of plaintiffs head, eyes, neck, back, mental status, speech, cranial nerves, motor, sensory, reflexes, coordination and gait. With respect to plaintiffs back, Dr. Seliger found: "no focal tenderness in [the] thoracic, lumbar, or sacral region[s]" and "[f]ull range of motion." (Id. at 2) In short, the examination revealed "no neurologic disability." (Defs.' Ex. F, Letter dated July 6, 2000 from Marion Seliger, M.D., at 4).
While defendants do not dispute that plaintiff sustained an injury as a result of the accident, at issue in this motion for summary judgment is their contention that this injury was not a "serious injury" as defined under New York Insurance Law, as it has never prevented him from performing substantially all of his normal life activities and does not significantly limit his use of a body function or system.
DISCUSSION
New York substantive law governs this diversity action pursuant to well-settled principles governing the choice of law in diversity actions. Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999). New York's no-fault statute for automobile accidents bars recovery for 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 for economic loss. A right of recovery for non-economic loss does exist, however, "in the case of serious injury." Morrone v. McJunkin, No. 98 CV 2163, 1998 Lexis 19506, at 4 (S.D.N.Y. 1998); N.Y. Ins. Law § 5104(a) (McKinney 1998). Nine categories of injuries constitute "serious injury" under the statute:
"Serious injury" means 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 body function or system or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
N.Y. Ins. Law § 5102(d) (McKinney 1998). To demonstrate that his injuries are "serious injuries" entitling him to recovery under the no-fault statute, plaintiff must demonstrate that his injuries fall into one of the nine statutory categories.
Summary judgment against a plaintiff who seeks recovery under New York Insurance Law is appropriate when the evidence would not warrant a jury finding that the injury falls within one of the nine statutory categories. Licari v. Elliot, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 573-74 (1982). Thus, once a defendant establishes a prima facie case that plaintiffs injuries are not serious, the burden shifts to plaintiff to demonstrate that there is a serious injury. Morrone. 1998 Lexis 19506 at 5-6 (citing Gaddy v. Elyer, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 991 (1992)). Plaintiff may defeat summary judgment through admissible evidence in the form of sworn affidavits by physicians. Morrrone, 1998 Lexis 19506 at 5-6 (citing Bonsu v. Metropolitan Suburban Bus Authority, 202 A.D.2d 538, 610 N.Y.S.2d 813, 813-14 (2d Dep't 1994); McLoyrd v. Pennypacker, 178 A.D.2d 227, 577 N.Y.S.2d 272, 273 (1st Dep't 1991),appeal denied, 79 N.Y.2d 754, 590 N.E.2d 250 (1992)). Defendants' summary judgment motion may be premised on unsworn reports by plaintiffs physicians, but defendants must provide evidence from their own physicians in the form of sworn affidavits. See e.g., McGovern v. Walls, 201 A.D.2d 628, 607 N.Y.S.2d 964 (2d Dep't 1994); Looney v. Epervary, 194 A.D.2d 591, 599 N.Y.S.2d 989, 989-90 (2d Dep't 1993).
Neither plaintiff nor defendants dispute that they are subject to New York's no-fault statute. Plaintiff therefore is barred from recovering for non-economic loss unless he can show that his injuries fall within one of the nine categories of serious injury enumerated in § 5102(d). Plaintiff limits his claim to the last two categories of § 5102(d), which require: a showing of "significant limitation of use of body function or system" or "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." (Pl.'s Fed.R.Civ.P. 56.1 Statement, ¶ 8, 9).
Defendants have certainly met their burden of proving a prima facie case that plaintiffs injuries are not serious. They have submitted a sworn affidavit from a neurologist, Marlon Seliger, M.D., accompanied by an exhibit containing an unsworn medical report. (Defs.' Ex. G) Dr. Seliger performed a neurological examination of plaintiff on July 6, 2000. His affidavit states that plaintiff "presented with no neurologic complaints, performed all of his usual daily activities, and is working as a freight elevator operator." He further states that plaintiff:
suffered a cervical spinal and lumbosacral spinal strain and sprain syndrome. From a neurologic standpoint, he has made a good recovery. No further neurologic evaluation or treatment is needed. No further neurologic diagnostic testing is needed. There is no neurologic disability. Not only is Mr. Cooper capable of working, at the time of my examination, he is working.
(Id. at 2-3) The report accompanying Dr. Seliger's affidavit sets forth the findings of his examination, including his determination that plaintiff has full range of motion in his back. (Id.)
In disputing the conclusions reached by Dr. Seliger, plaintiff correctly points out that Dr. Seliger does not specify the name of the range of motion test he administered. However, the report does indicate that he tested plaintiffs back for range of motion and concluded that plaintiff had full range of motion. (Id.)
In the face of defendants' showing, plaintiff contends that he has met his burden and can defeat summary judgment. He maintains that he can prove a "serious injury" under New York Insurance Law § 5102 by demonstrating both: (i) that he has a "significant limitation of use of a body function or systems" and (ii) that he has "a medically determined injury or impairment of a non-permanent nature which prevents [him] from performing substantially all of the material acts which constitute [his] usual and customary daily activities for not less than 90 days during the 180 days following the occurrence of the injury or impairment." (Aff. of Richard Mogg in Opp'n, ¶ 5; Pl.'s Rule 56.1 Statement, ¶¶ 8, 9) In support of these contentions, plaintiff submits Dr. Kaganovsky's sworn affidavit, with attached reports and notes, as well as his own affidavit.
Dr. Kaganovsky's sworn affidavit is based on his September 22, 2000 examination of plaintiff He characterizes plaintiffs condition as follows: "tenderness on palpation over the cervical spine and posterior medial paraspinals" (Pl.'s Exh, 6); "tension on palpation over the paravertebral muscle distribution with muscle spasm" (id); loss and limitation of cervical spine motion (10 degrees on flexion, 8 degrees on extension, 12 degrees on left and right lateral rotation, and 6 degrees on left and right lateral flexion). (Id.) In addition, Dr. Kaganovsky states that plaintiff demonstrated "vertebral trauma" on forward flexion (Id. at 7) and loss and limitation of lumbar spine motion (16 degrees on flexion, 6 degrees on extension, 6 degrees on left and right lateral rotation, and 2 degrees on left and right lateral flexion). (Id.) Finally, Dr. Kaganovsky observes that plaintiff demonstrated "difficulty bending and standing" and "ambulating in heel to toe fashion." (Id. at 8).
Translated into percentages, these test results indicate a limitation of cervical spine motion of 17% on flexion, 16% on extension, 15% on left and right lateral rotation, and 15% on left and right lateral flexion and a limitation of lumbar spine motion of 18% on flexion, 20% on extension, 20% on left and right lateral rotation, and 10% on left and right lateral flexion.
Based on these findings, Dr. Kaganovsky makes two relevant conclusions: (I) that "as a direct result of the accident of November 20, 1997 [plaintiff] sustained injuries which cause him to suffer from cervical and lumbar limitation of motion, which in [his] opinion, are of a permanent nature, which prevented [plaintiff] from performing substantially all of the material acts which constituted his usual and customary daily activities, for more than ninety (90) days during the one hundred and eighty (180) days immediately following the accident of November 20, 1997" (id. at 13), and (ii) that "the cervical herniated disc injury with impingement has caused Mr. Cooper to sustain a significant limitation of the use of a body function or system (his spine)." (Id. at 14)
Dr. Kaganovsky also concludes that plaintiff is "permanently partially disabled for the rest of his life, and that his cervical spine condition will only get worse over time." (Id. at 12) As both plaintiffs Rule 56.1 Statement and his attorney's affirmation clearly argue that issues of fact exist as to only two categories of serious injury, this observation is not considered to be a claim pursuant to § 5102(d) that plaintiff suffered a "permanent consequential limitation of use of a body organ or member." (Pl.'s Rule 56.1 Statement, ¶ 8, 9; Mogg Aff., ¶ 5)
A closer examination of Dr. Kaganovsky's findings reveals that they do not support the legal conclusion that plaintiff urges, namely that he suffered a "serious injury."
1. Plaintiff's claim of "significant limitation"
Dr. Kaganovsky's affidavit states that plaintiff complained of pain and experienced limitation in motion as a result of the injury he sustained in the 1997 accident. However, these assessments do not amount to a "significant limitation" on plaintiffs use of a body function or systems under New York's no-fault insurance law.
New York courts construe the word "significant" to mean something more than a minor limitation. "Whether a limitation of use or function is deemed not `significant' or "consequential' (i.e., important) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part." Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900 (1990) (internal citations omitted). Subjective complaints of recurrent pain are insufficient to establish a "significant limitation" unless accompanied by objective, medical evidence of the extent or degree of the limitation and its duration. See e.g. Beckett v. Conte, 176 A.D.2d 774, 774, 575 N.Y.S.2d (2d Dep't 1991) (granting summary judgment for defendants despite plaintiffs contention that she continued to suffer pain and was unable to work due to injuries suffered in an accident where defendants' medical expert stated that "no evidence existed of any neurological dysfunction") (citing Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788 (1987); Phillips v. Costa, 160 A.D.2d 855, 554 N.Y.S.2d 288 (2d Dep't 1990)); Tipping-Cestari v. Kilhenny, 174 A.D.2d 663, 571 N.Y.S.2d 525, 526 (2d Dep't 1991) (holding that subjective complaints of pain stemming from cervical and lumbar sprain "cannot suffice to establish serious injury under the statute");Traugott v. Konig, 184 A.D.2d 765, 587 N.Y.S.2d 192, 192 (2d Dep't 1992) (finding insufficient plaintiffs "subjective experience of pain" for purposes of recovery under section 5102).
Nor is a minor limitation in motion sufficient to establish "significant limitation" of use of a body function or systems. Even if a plaintiff succeeds in establishing some permanent restriction of motion, that showing is insufficient if the restriction is only partial.Christopher v. Caldarulo, 160 Misc.2d 360, 366, 608 N.Y.S.2d 998 (Sup.Ct. Madison Co. 1994) (holding that "Even if some restriction of motion of 5 to 10% were established there is no proof that it constituted a significant limitation of use of a body organ or member. Such minor limitation of movement is not "significant" within the meaning of the statute and constitutes at best minor limitation of use.") (citingWaldman v. Chang, 175 A.D.2d 204, 572 N.Y.S.2d 79 (2d Dep't 1991) (holding as a matter of law that plaintiffs 15% limitation in range of motion of cervical spine is not "significant" within the meaning of the statute); Gaddy v. Eyler, 167 A.D.2d 67, 570 N.Y.S.2d 853 (3d Dep't 1991), aff'd 79 N.Y.2d 955, 582 N.Y.S.2d 990 (1992) (granting defendant's motion for summary judgment where plaintiffs minor limitation of movement in neck and back are insignificant within the meaning of the no-fault statute). Nor is a limitation of motion that has resolved sufficient to establish significant limitation. Schultz v. Von Voight, 216 A.D.2d 451, 628 N.Y.S.2d 388, 389 (2d Dep't 1995) (granting summary judgment to defendant because it presented evidence that plaintiff had recovered from alleged disc herniation).
Turning to this case, it is apparent that plaintiff is not "significantly limited" in his use of a body function or systems. While Dr. Kaganovsky's affidavit describes plaintiffs injuries with the language that is required for recovery under the statute, the absence of objective, medical evidence supporting his conclusions renders the affidavit insufficient to establish a "significant limitation." See e.g. Waldman, 572 N.Y.S.2d at 80 (granting summary judgment against plaintiff where affirmation from plaintiffs treating physician consisted in "`conclusory assertions tailored to meet statutory requirements"').
Notwithstanding Dr. Kaganovsky's repetition of the words "permanent" and "significant" in his affidavit, plaintiffs limitations can hardly be called "significant" even under Dr. Kaganovsky's own test. Addressing the possible complications that may arise following a back injury, Dr. Kaganovsky writes:
Complications resulting [from] acceleration-deceleration injuries can range from mild to devastating. Mild complications may include muscular discomfort, stiffness and pain. The most serious complications may result in or include neurological involvements and functionability deficits. The degree of injury depends upon several factors including the permanence of the injury and the amount of scarring that may occur.
(Pl.'s Ex. 2, Letter dated September 27, 2000, at 4) Plaintiffs condition in September 2000, as described by Dr. Kaganovsky, consists of a 10 to 20% limitation in range of motion and subjective complaints of pain during certain activities. Mindful of the fact that there is no "bright-line rule which demarcates a `serious injury[,]'" Gaddy, 167 A.D.2d. at 72, the court nonetheless fails to glean from Dr. Kaganovsky's affidavit a basis upon which to categorize plaintiffs limitations as "significant," especially when compared with the observation of defendants' physician that plaintiff has made a full recovery.
Dr. Kaganovsky's assessment of plaintiffs impairment also is insufficient to the extent it predicts a series of complications that plaintiff might experience down the road. The same letter states: "It ispossible that [plaintiff] will develop deterioration of the cervical and lumbar disc displacements and other associated medical complications such as spinal cord injury." (Id.) (emphasis added) While acknowledging that plaintiffs "[c]ervical and lumbar mobility were moderately improved" after several months of physical therapy. Dr. Kaganovsky again speculates that: "he will likely experience exacerbations and require periods of treatment in the future." (Id.) (emphasis added) Finally: "Due topossible aggravation and deterioration of the cervical and lumbar discal injuries, any surgical intervention cannot be ruled out at such time as pain becomes unbearable or there is a possibility of spinal cord damage. Patient remains partially disabled through the present time." (Id.) (emphasis added) New York law is clear that such forecasts do not constitute objective, medical evidence of a "significant limitation." See Lopez v. Senatore, 65 N.Y.2d 1017, 1019-20 (1985) (granting summary judgment for defendant where plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements and holding that: "While in general summary judgment can neither be awarded nor defeated on the basis of conclusory assertions, the insufficiency of conclusory assertions of "serious injury' is underscored in cases under the No-Fault Law, where 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 no-fault premium."') (internal citations omitted); Gaddy, 79 N.Y.2d at 992 (granting summary judgment to defendant where "the expert's statements reflect the speculative nature of plaintiff s condition. Moreover, the mere repetition of the word `permanent' in the affidavit of plaintiffs treating physician — prepared two years after his last examination and consisting of conclusory assertions tailored to meet the statutory requirements — is insufficient to establish `serious injury.'") (internal citations omitted).
Nor can evidence of "significant limitations" be found in plaintiffs deposition testimony or affidavit. Plaintiff was employed at the time of his deposition and apparently has been employed for over two years. Yet, plaintiff cites his inability to work during his recovery as evidence of a significant limitation.
The record is rife with discrepancies regarding the duration and extent of plaintiff s alleged confinement. When asked at his deposition whether he had been treated by Dr. Kaganovsky in total for "approximately a year[,]" plaintiff answered "[y]eah." (Id. at 89) Plaintiff also testified that during that year he "stayed out of work" (id. at 105) and, once again, that after his accident he remained unemployed for "[a]bout a year." (Id. at 20 21).
However, other portions of the record suggest that plaintiff not only was working four months after his accident but was actively pursuing jobs prior to that point. Despite having testified that he was not able to go work while he was undergoing physical therapy, plaintiff later concedes that during his therapy he applied for jobs with "a lot of messenger companies." (Id. at 21) Plaintiff was unable to recall precisely how many jobs he applied for or the names of any of the places where he applied, but he admits that he "probably" applied to at least two jobs and cannot exclude the possibility that he applied to as many as five jobs. (Id. at 22) Significantly, plaintiff attributes his reluctance to accept those jobs not on his health but on the fact that they "were just paying minimum wages[,]" which were insufficient because he "had a family to feed and stuff like that." (Id. at 21) Plaintiffs first job after his accident was as a messenger for Time Warner, where he essentially had the same responsibilities he had at Dinographics. (Id. at 8, 24) Plaintiff testified that he stayed at that his job with Time Warner for two years. (Id. at 8) Assuming plaintiffs recollection is correct, it would thus appear that plaintiff began working at Time Warner as early as March 1998, approximately four months after his accident. Further evidence substantiating this time frame is found in plaintiffs testimony that he last attended a physical therapy session at the end of 1997 or beginning of 1998. (Id. at 99) Moreover, plaintiffs own physician states in his affidavit that plaintiff terminated physical therapy on March 18, 1998. (Pl.'s Ex. 2, Kaganovsky Aff., ¶ 3) On balance, these inconsistencies give ample reason to doubt plaintiffs assessment that significant limitations prevented him from working for an entire year following his accident. In view of plaintiffs failure to provide objective, medical evidence suggesting anything more than a minor limitation, as well as Dr. Seliger's conclusion that plaintiff suffers from no neurological impairment, plaintiff has failed to prove an injury that "significantly limits a body function or systems."
Plaintiffs first position after his accident, at Time Warner, paid above minimum wage. (Id at 23) His current position at Temco also pays above minimum wage. (Id. at 24)
2. Plaintiffs claim that he was prevented from normal life activities for no less than 90 of the 180 days following his accident
Equally unpersuasive is plaintiffs attempt to establish that his injuries "prevented" him from performing substantially all of the material acts which constituted his usual and customary daily activities for the statutorily mandated time period. Plaintiff has stated, in response to interrogatories, that he "was partially and/or totally confined to his bed and/or home for approximately 120 days from the date of the accident on a non-continuous and intermittent basis since that time period up to the present time period, and such confinement is continuing into the future." (Defs.' Ex. E, Pl.'s Response to Defs.' First Interrogs., ¶ 8)
Again, the main activity plaintiff claims he was prevented from undertaking during the statutorily mandated time period is employment. However, nothing in Dr. Kaganovsky's report provides "medical proof connecting plaintiffs lack of employment to [his] accident-related injuries." Beckett v. Conte, 176 A.D.2d 774, 774, 575 N.Y.S.2d 102 (2d Dep't 1991) (finding plaintiffs continued unemployment insufficient to defeat summary judgment even where plaintiffs physician submitted affidavit, prepared two to three years after the medical examinations upon which the opinions were based, indicating that she had suffered 11% impairment of the dorsolumbar spine due to injuries endured in an automobile accident). In fact, as discussed earlier, plaintiffs own testimony indicates that the pain and limited range of motion plaintiff experienced during those 120 days did not prevent him from actively seeking employment.
The conclusions reached by Dr. Kaganovsky in his affidavit concerning plaintiffs ability to participate in substantially all of his normal life activities during at least 90 of the 180 days after the accident also are problematic in that they are based on an examination performed three years after the accident. As such, while the affidavit may accurately describe plaintiffs condition during the time of the examination, it is insufficient to establish that plaintiff was prevented from working or performing any of his other major life activities before May 1998, which is more than two years earlier. See e.g., O'Neill v. Rogers, 163 A.D.2d 466, 466, 559 N.Y.S.2d 669 (2d Dep't 1990) (rejecting physicians' characterization of plaintiffs alleged disability as "permanent" where reports were prepared over five years earlier and, accordingly, were not premised upon any recent medical examination of the plaintiff); Philpotts v. Petrovic, 160 A.D.2d 856, 857, 554 N.Y.S.2d 289 (2d Dep't 1990) (rejecting conclusions reached in affidavit prepared more than 2 1/2 years after physician had last seen plaintiff); Covington v. Cinnerella, 146 A.D.2d 565, 566, 536 N.Y.S.2d 514 (2d Dep't 1989) (rejecting findings in physician's affidavit, which did not indicate that physician had recently examined plaintiff).
Nor is a connection between plaintiffs injury and his inability to work established by Dr. Kaganovsky's unsworn reports and notes. Even assuming that these notes were prepared contemporaneously with plaintiffs therapy sessions, they do not provide evidence of plaintiffs inability to perform substantially all of his customary life activities. Instead, the notes merely indicate that plaintiff experienced "neck and lower back pain"; "difficulty sitting or walking for more than 15-20 minutes at a time"; "tenderness"; "tension"; "neck and lower back pain after activity and during inclement weather [and] after lifting heavy objects"; and "mild cervical muscle spasm[.]" (Pl.'s Ex. 2, Notes dated May 22, 1998) While the notes document ongoing limitations in plaintiffs range of motion, they also contain evidence of plaintiffs progress in physical therapy, including a ten percent improvement in range of motion on December 10, 1997, a 15 percent improvement on January 6, 199[8], and a 25 percent improvement on March 16, 1998. Significantly, not one of these notes suggests that these limitations in range of motion plaintiff from performing substantially all of his normal daily activities for at least 90 days of the 180 days immediately following the accident.
The same assumption articulated in footnote 4, supra, concerning the date of this note applies here.
Dr. Kaganovsky apparently conducted range of motion tests prior to the September 22, 2000 examination upon which his affidavit is premised. The results of those tests are reported in a letter dated May 22, 1998 and they describe much more significant limitations in range of motion than those observed by Dr. Kaganovsky on September 22, 2000. (Pl.'s Ex. 2) While the date these tests were performed is not immediately apparent from the May 22, 1998 letter (as it appears to have been corrected by hand), the letter states that plaintiff first presented for examination on November 20, 1997. Other evidence in the record suggests that plaintiff first visited Dr. Kaganovsky on November 24, 1997 — four days after his accident. If the tests were indeed performed during plaintiffs first visit to Dr. Kaganovsky, then they describe plaintiffs range of motion only four days after the accident. To that extent, the test results do not speak to plaintiffs condition during the 180 days immediately following the accident. Because no other test results are submitted which purport to describe plaintiffs range of motion during those 180 days and whether that range of motion prevented plaintiff from engaging in his normal life activities, there is no basis upon which to conclude that limitations in plaintiffs range of motion prevented him from performing substantially all of his usual and customary activities.
Specifically, these tests suggest cervical spine limitations of 43% on flexion, 47% on extension, 37% on left and right rotation, and 40% on left and right lateral flexion and lumbar spine limitations of 49% on flexion, 47% on extension, 33% on left and right rotation, and 40% on left and right lateral flexion.
Besides citing range of motion tests that apparently do not describe plaintiffs condition during the 180 days following the accident, Dr. Kaganovsky' s report also cites plaintiffs unsubstantiated complaints. The May 22, 1998 letter notes that: "Patient reported of having difficulty performing routine tasks and activities due to the fact that he suffered from neck and lower back pain." (Id.) However, without range of motion tests describing plaintiffs condition during the relevant time period, plaintiff cannot substantiate these complaints.
Lacking objective, medical evidence of his inability to perform substantially all of his customary life activities for the mandated period, plaintiff is left with his affidavit and deposition testimony. Plaintiffs affidavit, for the most part, simply parrots his physician's affidavit and does not furnish evidence of his inability to perform substantially all of his customary life activities during the period called for by the statute. Nor does plaintiffs testimony indicate such an inability. As discussed earlier, plaintiffs testimony suggests that his failure to work was more a product of choice rather than a result of his injury. Specifically, plaintiff testified that he searched for jobs during his physical therapy and started working when he was able to secure a job that offered more than minimum wage. (Pl.'s Dep., 23) Unlike in Sole v. Kurnik, 119 A.D.2d 974, 975, 500 N.Y.S.2d 872 (4th Dep't 1986), the only case cited by plaintiff in support of his argument that he was prevented from performing his usual daily activities, there is no evidence here that plaintiffs return to work was compelled solely by "economic necessity." Indeed, the fact that plaintiff held off for a job paying above minimum wage, even though he was only earning minimum wage at the time of his accident (Pl.'s Dep., 13), suggests that economic necessity was not the driving force behind his job search. As such, plaintiffs self-serving attempt to attribute his unemployment to his injury is insufficient under New York Insurance law to establish that he was unable to work during the statutory period.
Nor does plaintiffs argument that he is prevented from exercising and playing in sports substantiate his inability to perform substantially all of his normal life activities for the period set forth in the statute. While plaintiff does testify that after the accident he could no longer play basketball, do pushups or calisthenics (Pl.'s Dep. 102, 103), this testimony alone does not compel the conclusion that he suffered a "serious injury." Section 5102 requires a plaintiff to prove that he is prevented from performing "substantially all of the material acts" which constitute his usual daily activities. "Substantially all" is construed "to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment."Licari, 57 N.Y.2d at 236. Plaintiffs inability to play a pick-up game of basketball or do push ups are simply not losses for which recovery is permitted under New York's no fault insurance scheme. See e.g., Caiazzo v. Crespi, 124 A.D.2d 623, 624, 507 N.Y.S.2d 884 (2d Dep't 1986) (granting summary judgment against plaintiff where her statement that "she could no longer play `pick-up' games of lacrosse and that she felt pain when swimming and lifting heavy boxes" was insufficient to create a triable issue of fact as to "serious injury"). As such, plaintiff has failed to establish that he was prevented from performing substantially all of his customary daily activities for the time period called for in § 5102 of New York's no-fault insurance law.
CONCLUSION
Because plaintiff has failed to prove that he sustained a "serious injury" that either significantly limited his use of a body function or systems or prevented him from engaging in substantially all of the material acts constituting his usual daily activities, defendants' motion for summary judgment is granted and plaintiffs case is dismissed in its entirety.
SO ORDERED.