Opinion
Civil Action No. CV 01-0861 (DGT) (ASC).
August 10, 2004
MEMORANDUM AND ORDER
Plaintiffs Louis R. Scotto ("Scotto") and Francesca A. Scotto (together "plaintiffs") brought this action pursuant to the Insurance Law of the State of New York (the New York No-Fault law). Louis Scotto contends that the various injuries that he suffered in a car accident with Michael Moraldo and Donna M. Moraldo ("defendants") are "serious" as defined by N.Y. Ins. Law. § 5102(d) (Consol. 2004) ("§ 5102(d)"). Louis Scotto argues that as a result of his "serious injury" he was damaged in the sum of $1,000,000. (Moraldo Affirmation, Ex. A at 14). Francesca Scotto argues that as result of Louis Scotto's serious injury, she was deprived of the services, society and companionship of her spouse. She seeks damages in the sum of $150,000. Id. at 16. In their motion for summary judgment pursuant to Fed.R.Civ.P. 56(c), defendants contend that Louis Scotto's alleged injuries do not qualify as "serious" as defined by § 5102(d).
Background
On January 3, 2000, plaintiffs were involved in an automobile accident with defendants. (Moraldo Affirmation, Ex. A ¶ 9). Louis Scotto testified that he was stopped at the light between Midland Avenue and Father Capodanno Boulevard in Staten Island, N.Y. (Moraldo Affirmation, Ex. F at 25). There were two or three cars in front of him. He was at a complete stop for a couple of seconds, but then defendants' vehicle hit Scotto's vehicle from behind. Id. at 32. The rear impact moved Scotto's car straight ahead into the car in front of him. As a result, there were two impacts in the crash. At the time, Scotto was wearing a seatbelt; however, the airbags did not deploy. Id. at 36. As a result of both impacts, Scotto hit the seatbelt and the seat with his neck, back, and chest. Id. at 37. Scotto was able to get out of the car by himself, but suffered from pain in his neck, back, both shoulders, and in his left leg. Id. at 38-9.
The following facts are based on Louis Scotto's deposition. (Moraldo Affirmation, Ex. F).
About an hour after the accident, id. at 44, Scotto went to Staten Island Hospital and was seen by Dr. Gary Kaplan (Scotto Affirmation, Ex. A (Report of Dr. Kaplan, 1/3/00)). Scotto complained of head and shoulder pain. However, he did not complain of any back pain. Neurovascular status was found to be grossly intact at the time. No focal motor weakness was identified. Id. at 1. Scotto was x-rayed and was diagnosed with whiplash. He was given Advil and told to follow up with his medical doctor. (Moraldo Affirmation, Ex. F at 51).
Scotto was then treated by Dr. Caraccino. (Scotto Affirmation, Ex. A (Report of Dr. Carracino, 1/4/00); Moraldo Affirmation, Ex. F at 53). Scotto complained to the doctor about pain in his neck, shoulders and upper back. (Moraldo Affirmation, Ex. F at 54). Dr. Caraccino diagnosed whiplash injury. (Scotto Affirmation, Ex. A (Report of Dr. Carraacino, 1/4/00)). Additionally, a day or two after the accident Scotto began to suffer from headaches and eye pain. (Moraldo Affirmation, Ex. F at 54). Dr. Caraccino only gave Scotto an anti-inflammatory and did not take any x-rays nor advise Scotto to undergo surgery.
Based on documents submitted by plaintiffs, it appears that Scotto only saw Dr. Caraccino for these injuries on January 4, 2000. In his deposition, Scotto claims that he saw him one or two times and then continued his treatment with the chiropractor. (Moraldo Affirmation, Ex. F at 55).
At the time of his deposition (October 24, 2002), Scotto took Advil two or three times a week because of his pain. Id. at 71. At that time, Scotto claimed that since the accident, he had experienced daily pain and limitation of movement in his neck and upper back, which prevented him from performing his usual and ordinary activities. These activities included bending, lifting, twisting, coughing or sneezing. (Scotto Aff. ¶ 4). He was limited in his ability to stand for more than 20 minutes, to sit for more than 45-60 minutes, and to walk more than a few blocks. Id. ¶ 5. Furthermore, Scotto was unable to drive for more than one hour at a time. Id. ¶ 8. Scotto also experienced headaches, id. ¶ 7, and was unable to play sports or run for more than 20 minutes at a time, id. ¶ 6. Scotto also did not do any housework and did not have sexual intercourse for at least three months after the accident. (Moraldo Affirmation, Ex. F at 79, 80).
Scotto claims that at first, it "was painful to do anything, so I guess after that I kind of lost a little interest." (Moraldo Affirmation, Ex. F at 82). At the time of his deposition, Scotto was not having sexual intercourse with his wife and had not sought treatment. Id. at 82-83.
Since 1978, Scotto has worked for South Beach Psychiatric Center. He is a social worker and the director of the day hospital. Id. at 9-10. Scotto supervises the staff (between 10-15 people) responsible for therapy and for running groups for the clients. During his job, he is mostly seated. However, as a result of the car accident, Scotto missed a week of work and would later miss between 10 to 15 days for medical treatment. Id. at 12, 14. When Scotto returned to work, he was only limited in that he could not turn his neck to talk to people. Id. at 13.
(1) New York's No-Fault Law In order to recover for non-economic loss in a motor vehicle accident under New York
Law, the injury must be defined as "serious." N.Y. Ins. Law. § 5104 (Consol. 2004). "Serious injury" is defined as a personal injury that results in:
death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary 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) (Consol. 2004). Scotto contends that his bodily injuries are "serious" under the last four categories of § 5102(d) (Scotto Affirmation ¶ 1).
The legislative intent of New York's No-Fault law was to "significantly reduce the number of automobile personal injury cases litigated in the courts," Licari v. Elliot, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 573 (1982) and to "weed out frivolous claims and limit recovery to significant injuries," Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 902 (1995).
Defendants contend that Scotto does not suffer from a serious injury. (Moraldo Affirmation ¶ 9). Defendants rely on the sworn reports of Dr. Michael J. Katz and Dr. Edward Weiland Dr. Katz, an orthopedist, examined Scotto on October 4, 2002. (Moraldo Affirmation, Ex. D at 1). He found a full range of motion in the cervical and lumboscral spine. Id. at 2. Dr. Katz diagnosed "cervical strain-resolved" and "lumbosacral strain-resolved." Dr. Katz believed that Scotto was not disabled and was capable of all of his daily activities at the current time. Id. at 1. Dr. Weiland, a neurological consultant, examined Scotto on September 30, 2002, on which date he diagnosed "closed head trauma with subjective headache disorder," "cervical sprain/strain — resolved," and "lumbosacral sprain/strain — resolved." Id. at 3. (Moraldo Affirmation, Ex. E at 1). Dr. Weiland did not find any evidence of any lateralizing neurological deficits at that time. He believed that Scotto could perform the activities of daily living and continue gainful employment. Id. at 1.
By these reports, defendants met their initial burden of establishing that Scotto has not sustained a "serious injury" within the meaning of § 5102(d). According to the medical reports of Drs. Katz and Weiland, Scotto did not suffer a permanent injury or a limitation of movement in the back or neck. Thus, the question comes down to whether he has shown that a genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-moving party. Lucente v. IBM, 310 F.3d 243, 253 (2d Cir. 2002) ( citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Thus, unless the plaintiffs present a genuine issue of material fact, based on competent medical evidence, summary judgment will be granted. Tarnopolsky v. Sanchez, No. 01-CV-5020, 2002 U.S. Dist. Lexis 20588, at *4 (E.D.N.Y. September 27, 2002).
Though Scotto complains of headaches and eye pain, a plaintiff's subjective experience of pain cannot, by itself, form the basis of a "serious" injury. See 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, 581 N.Y.S.2d 665 (1992).
(2) Competent Medical Evidence
Attached as exhibits to the plaintiffs' affidavit in opposition to the motion for summary judgment are the medical reports of Dr. Mario Funicelli, a chiropractor (Scotto Affirmation, Ex. A (Chiropractic Aff.)), Dr. Robert Diamond, who performed an MRI on Scotto (Scotto Supplemental Affirmation, Ex. A), Dr. Gary Kaplan, the attending doctor at Staten Island Hospital during the day of the accident (Scotto Affirmation, Ex. A (Report of Dr. Kaplan, 1/3/00)), Dr. David Zelefesky, an orthopedist (Scotto Affirmation, Ex. A (Report of Dr. Zelefsky, 1/7/00)), Dr. Michael M. Katz, a radiologist (Scotto Affirmation, Ex. A (Report of Dr. Katz, 1/19/00)), Dr. Robert Caraccino, Scotto's primary care doctor (Scotto Affirmation, Ex. A (Report of Dr. Caraccino, 1/4/00)), and Dr. Igor Stiler, a neurologist (Scotto Affirmation, Ex. A (Report of Dr. Stiler, 1/14/00)).
Competent medical evidence tendered as proof of "serious injury" must be submitted in admissible form. See Grasso v. Angerami, 79 N.Y.2d 813, 813, 580 N.Y.S.2d 178, 179 (1991) (holding that when plaintiff submits proof of "serious injury" in inadmissible form, "an acceptable excuse for the deficiency [must be] offered"); Williams v. Ritchie, 139 F. Supp.2d 330, 334 (E.D.N.Y. 2001) ("A plaintiff may defeat summary judgment through admissible evidence in the form of sworn affidavits by physicians") (citing Morrone v. McJunkin, No. 98-2163, 1998 U.S. Dist. LEXIS 19506, at *5-6 (S.D.N.Y. Dec. 14, 1998) (citing Bonsu v. Metropolitan Suburban Bus Auth., 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))); Smalls v. Izzo, No. 94-4047, 1996 U.S. Dist. LEXIS 9621, *7 (S.D.N.Y. July 10, 1996) ("[A] plaintiff relying solely on unsworn medical reports of physicians will fail to establish a prima facie case of serious injury within the meaning of [New York] Insurance Law") (citing Maliadis v. Giaconnelli, 191 A.D.2d 682, 595 N.Y.S.2d 540 (2d Dep't 1993)). See also Fed.R.Civ.P. 56(e) ("The adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.").
However, where medical evidence sufficient to defeat summary judgment is submitted in inadmissible form, a court may deny summary judgment on the condition that the relevant medical evidence be resubmitted in admissible form. See Nasrallah v. Oliveiri Helio De, No. 96-8727, 1998 U.S. Dist. Lexis. 4173, at *11 (S.D.N.Y. Apr. 2, 1998) (denying summary judgment and directing plaintiff to resubmit medical evidence in admissible form in a case involving medical evidence that is "incompetent because it is not in the form of an affidavit or affirmation," but which "if submitted in admissible form, suffices to defeat summary judgment").
Dr. Funicelli's and Dr. Diamond's findings are in the form of affidavits, and thus are admissible. However, defendants contend Dr. Funicelli's affidavit fails to raise a triable issue of fact because he was not aware of Scotto's partial thyroidectomy and a prior work related injury in which Scotto injured his lower back (Moraldo Reply Mem. Of Law at 5). Thus, defendants contend, it is mere speculation that his injuries are causally related to the accident. Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232 (2003) (holding that plaintiff's doctor's report was insufficient to defeat summary judgment as he failed to adequately address plaintiff's preexisting back condition and other medical problems). However, in Franchini, the evidence did not raise a triable issue of fact as the physician also failed to set forth the objective medical basis for his conclusions. Id. Furthermore, in Franchini, the plaintiff's preexisting injury was the result of an assault that occurred only seven months prior to the car accident. Franchini v. Palmieri, 307 A.D.2d 1056, 1057, 763 N.Y.S.2d 381, 382 (3d Dep't 2003), aff'd 1 N.Y.3d 536, 775 N.Y.S.2d 232 (2003). However, Scotto's original back injury occurred about twenty years ago and he testified at the deposition that it had resolved itself. (Moraldo Affirmation, Ex. F at 74). Additionally, Scotto's original back injury was to the lower back; Scotto's current injuries are to the cervical spine (neck area). Furthermore, while Scotto's thyroidectomy involved an operation on the neck, the injury he suffered to the neck as a result of the car accident is different from a thyroid disease. Thus, it is not mere speculation that Scotto's claimed injuries are causally related to the accident.
Defendants argue that Dr. Funicelli's affidavit "is the only admissible medical evidence submitted by plaintiff." (Moraldo Reply Mem. of Law, at 3-4). At the time Dr. Diamond's medical report was not in the form of an affidavit. However, plaintiffs later submitted it in admissible form. (Scotto Supplemental Affirmation, Ex. A).
Scotto did not submit any medical records as to the injury he suffered over twenty years ago. However, according to Dr. Caracinno's records, on April 1, 1999, he noted "low back-slipped discs . . . occ. pain." (Scotto Affirmation, Ex. A (Report of Dr. Caraccino 04/1/99)). Thus, it is a question for the jury to determine whether an injury to Scotto's lower back was related to the car accident. This issue was not discussed by either party.
Although Dr. Funicelli measured limitations in the movement of the dorsal lumbar spine (lower back) on the initial examination on January 16, 2000, no measured limitation was present on his re-examination on September 11, 2003. (Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 6)).
Defendants also contest Dr. Funicelli's findings because he merely mentioned an MRI report without testifying as to the findings in the report. (Moraldo Reply Mem. Of Law at 7). However, Dr. Funicelli reviewed the MRIs and testified to their findings. (Scotto Affirmation, Ex. B at 3). As defendants themselves argue, an expert's conclusion based on a review of MRI films and reports can provide objective evidence of a serious injury. (Moraldo Reply Mem. of Law at 7) (citing Nitti v. Clerico, 98 N.Y.2d 345, 358, 764 N.Y.S.2d 865, 873 (2002)). Furthermore, Dr. Funicelli did not rely solely on the MRIs for his diagnosis. His conclusions are also based on measurements from the Orthoranger Device. (Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 3). Thus, there is an objective basis to Dr. Funicelli's conclusion. See Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 350, 764 N.Y.S.2d 865, 867 (2002) (holding that objective proof of a plaintiff's injury is needed in order to satisfy the statutory serious injury threshold).
The findings in the MRIs were subsequently affirmed by Dr. Diamond, who performed the MRI on February 15, 2000. (Scotto Supplemental Affirmation, Ex. A).
Although Dr. Funicelli based part of his opinion on medical reports that were not in the form of an affidavit (Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶¶ 3,7), according to Toure, a doctor can use as a basis for his opinion other medical reports that were not submitted in admissible form. 98 N.Y.2d at 353, 764 N.Y.S.2d at 869.
In addition, defendants contest Dr. Funicelli's findings on the ground that neither Dr. Funicelli nor Scotto provided an explanation for the gap in treatment of almost three years. (Moraldo Supplemental Reply Mem. of Law at 4) (citing Sibrizzi v. Davis, 7 A.D.3d 691, 776 N.Y.S.2d 843, 2004 N.Y. Slip Op. 04002 (2d Dep't May 17, 2004) (dismissing plaintiff's claim for failure to offer a satisfactory explanation for the two-and-a-half year gap in treatment)). Dr. Funicelli treated Scotto from January 6, 2000 until June 8, 2000. He re-examined Scotto on September 11, 2003. (Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 3). Dr. Funicelli originally diagnosed a permanent partial disability and noted that continued therapy and treatment were essential and that the prognosis for a full recovery was poor. (Scotto Affirmation, Ex. A (Dr. Funicelli Report, 08/25/00), at 4)). However, Scotto presented a satisfactory reason for the gap in treatment, explaining that the gap was a result of the fact that Scotto's No-Fault benefits were denied and he was unable to pay out of pocket. (Scotto Affirmation ¶ 8).
Scotto did not state the reason why his No-Fault benefits were denied.
Thus, defendants have failed to discredit the reports of Drs. Funicelli and Diamond as inadmissible. Since Drs. Funicelli's and Diamond's reports are admissible and the summary judgment motion can be decided solely on the basis of their reports, it is unnecessary to rule on the admissibility of the other medical reports.
On February 15, 2000, Dr. Diamond performed an MRI on Scotto. He diagnosed "C2/3 through C5/5 posterior disc bulge with impression on the ventral subarachnoid space. C6/7 posterior disc herniation with foraminal narrowing and impression the ventral subarachonid space. Left maxillary sinusitis." (Scotto Supplemental Affirmation, Ex. A).
Dr. Funicelli's examinations of Scotto's cervical spine revealed the following:
Patient Patient Normal Percent Results Results Finding Limitation (1/6/00) (9/11/03) (9/11/03)
Flexion 40 degrees 60-65 45+ degrees None degrees Extension 20 degrees 24 degrees 45+ degrees 46% Right 25 degrees 30 degrees 45+ degrees 33% lateral flexion Left lateral 15 degrees 40 degrees 45+ degrees 11% flexion Right rotation 65 degrees 40 degrees 80+ degrees 50% Left rotation 65 degrees 50 degrees 80+ degrees 37.5%
(Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 6). Furthermore, Dr. Funicelli observed that x-rays taken on September 11, 2003, revealed a "loss of the normal cervical lordotic curvature with minimal to moderate loss of disc spacing at C5-6 and evidence of end plate sclerosis." (Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 3).
Dr. Funicelli diagnosed Scotto to have all of the following permanent medical conditions resulting from the accident of January 3, 2000:
1. C5-C6 posterior disc herniation with compression of subarachnoid space;
2. C2-C3, C3-C4, C4-C5, C5-C6 disc bulge;
3. cervical hyperextension/flexion injury;
4. cervical strain;
5. cervical radiculopathy;
6. cervico-cranial syndrome;
7. brachial neuritis/radiculitis;
8. internal derangement of the left shoulder;
9. supraspinatus tendonitis;
10. thoracic sprain;
11. internal derangement of the lumbar spine;
12. lumbar spine syndrome;
13. subluxation at L5-S1;
14. lumbar radiculopathy;
15. chronic cervical disc syndrome; and
16. subluxation at C5-6, C6-7.
Id. ¶ 7.
(3) "Serious Injury"
The four categories of "serious injury" by which plaintiffs contend that Scotto is entitled to recovery under New York's No-Fault Law are those referred to as types 6 through 9. A type 6 injury is the "permanent loss of use of a body organ, member, function or system" ("type 6 injury"). N.Y. Ins. Law § 5102(d) (Consol. 2004). The "permanent loss" must be a total loss of use. Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295, 297, 727 N.Y.S.2d 378, 379 (2001). This type of injury does not involve a partial loss of use. Id. at 299, 727 N.Y.S.2d at 381. While Scotto contends that he suffered a type 6 injury, none of Scotto's claimed injuries involve a permanent total loss of use. Other than claiming that Scotto suffered a type 6 injury, plaintiffs do not claim or present any evidence that Scotto suffered a permanent total loss of use.
Plaintiffs also claim that Scotto suffered a serious injury as a result of the "permanent consequential limitation of use of a body organ or member" ("type 7 injury") and "significant limitation of use of a body function or system" ("type 8 injury"). N.Y. Ins. Law § 5102(d) (Consol. 2004). "Whether a limitation of use is `consequential' or `significant' (i.e., important)" under the statute "relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function and use of the body part." Dufel, 84 N.Y.2d at 798, 622 N.Y.S.2d at 902. Furthermore, a "minor, mild or slight limitation of use" is insignificant within the meaning of the statute. Toure, 98 N.Y.2d at 353, 764 N.Y.S.2d. at 870. Although a type 7 injury requires permanence, it is not necessary that a type 8 injury be permanent. Preston v. Young, 239 A.D.2d 729, 732, 657 N.Y.S.2d 499, 501 (3d Dep't 1997) (holding that in finding a type 8 injury, the limitation in use does not have to be permanent).
Though there are cases that hold that the back and neck are considered a function or system, and as such, cannot be classified as a type 7 injury, Daviero v. Johnson, 110 Misc.2d 381, 387, 441 N.Y.S.2d 895, 899 (Sup.Ct. Schenectady County 1981), aff'd, 88 A.D.2d 732, 451 N.Y.S.2d 858 (3d Dep't 1982); Khouzam v. Zalesky, No. 93-CV-6360, 1996 U.S. Dist. Lexis 2125, at *15 (S.D.N.Y. February 26, 1996), in Toure, the New York Court of Appeals recognized that injuries to the back or neck could qualify as an injury in this category. 98 N.Y.2d at 353. Accordingly, classification of back or neck injuries as type 7 injuries is appropriate.
In order to demonstrate a type 7 or type 8 injury, it is not necessary to ascribe a "specific percentage to the loss of range of motion," but it is sufficient to describe the "qualitative nature of [the] plaintiff's limitations based on the normal function, purpose and use of the body part." Toure, 98 N.Y.2d at 353, 764 N.Y.S.2d at 869. However, where medical records indicate specific measurements of limited movement, courts have generally found a triable issue as to whether there is a significant limitation. Thus, in Licari a case involving a limitation of movement in the back and neck, an order for summary judgment was affirmed because the plaintiff failed to offer evidence "as to the extent of the limitation of movement." 57 N.Y.2d at 239, 455 N.Y.S.2d at 575 (original emphasis). See also Cenat v. Cutler, 251 A.d.2d 362, 672 N.Y.S.2d 812 (2d Dep't 1998) (denying summary judgment for a type 8 injury since the affidavit specified the degree to which the plaintiff's movement was restricted in his cervical spine). Similarly, in Lopez v. Senatore, where the "treating physician, in an affidavit supported by exhibits, has set forth the injuries and course of treatment, identified a limitation of movement of the neck of only 10 degrees to the right or left, and on that predicate expressed the opinion that there was a significant limitation of use of a described body function or system, such evidence was sufficient for the denial of summary judgment" for a type 8 injury. 65 N.Y.2d 1017, 1020, 494 N.Y.S.2d 101, 102 (1985). Though, in Lopez the court affirmed the lower court's granting of summary judgment on the type 7 injury, due to insufficient proof that the injury was permanent, id. at 1018, 494 N.Y.S.2d at 102, the principle articulated in Lopez by which the court finds a question of fact for a type 8 injury based on quantified measurements of limited movement should also apply to a type 7 injury.
There seems to be disagreement among New York courts as to whether a minimum percentage loss of range of motion is required to defeat summary judgment or whether any stated percentage loss is sufficient if one only ascribes a specific percentage to the loss of range of motion. In Paolini v. Sienkiewicz, a 6% limitation of movement in the spine was not considered a type 7 or type 8 injury and summary judgment was granted on those claims. 262 A.D.2d 1020, 1020, 691 N.Y.S.2d 836, 837 (4th Dep't 1999); see also Waldman v. Dong Kook Chang, 175 A.D.2d 204, 204, 572 N.Y.S.2d 79, 80 (2d Dep't 1991) (holding that a 15% limitation in the range of motion of the cervical spine is not a type 7 injury and summary judgment is granted); Bandoian v. Bernstein, 254 A.D.2d 205, 205, 679 N.Y.S.2d 123, 124 (1st Dep't 1998) (holding that a 10% restriction of extension and/or rotation of the cervical spine is not a type 7 injury and summary judgment is granted); Monette v. Keller, 281 A.D.2d 523, 524, 721 N.Y.S.2d 839, 839 (2d Dep't 2001) (holding that a 2% loss of cervical rotation is not a type 8 injury and summary judgment is granted).
However, in Leahey v. Fitzgerald, a summary judgment motion was defeated for a type 7 injury as the doctor "provided numeric percentages of plaintiff's loss of motion." 1 A.D.3d 924, 925, 768 N.Y.S.2d 55, 56 (4th Dep't 2003); see also Pech v. Yael Taxi Corp., 303 A.D.2d 733, 733, 758 N.Y.S.2d 110, 110 (2d Dep't 2003) (holding that a showing of quantified restrictions in the range of motion of the cervical spine defeats a motion for summary judgment for type 7 injury).
This issue need not be resolved in the instant case, as plaintiffs have made a prima facie showing that Scotto suffered from both type 7 and type 8 injuries. Dr. Funicelli assigned a quantitative percentage to the loss of range of motion in plaintiff's cervical spine. Based on the examination on September 11, 2003, the percent limitation of motion in the extension (46%), right lateral flexion (33%), right rotation (50%), and left rotation (37.5%) (Scotto Affirmation, Ex. B at 6) could be considered as a "consequential" or "significant" injury by New York courts. See Grullon v. Chang Ok Chu, 240 A.D.2d 367, 657 N.Y.S.2d 776 (2d Dep't 1997) (holding that a 35 to 40 degree limitation of movement in the lumbosacral spine is prima facie proof of serious injury); Bates v. Peeples, 171 A.D.2d 635, 635, 566 N.Y.S.2d 659, 660 (2d Dep't 1991) (holding that "restricted flexion 40 degrees, extension 10 degrees, lateral bending 10 degrees" in the cervical spine raises an issue of fact as to whether the plaintiff had suffered a "serious injury"); see also Durham v. N.Y. East Travel, Inc., 2 A.D.3d 1113, 1114, 769 N.Y.S.2d 324, 325 (3d Dep't 2003) (holding that a 50% restriction of the normal range of motion in the neck defeats a motion for summary judgment for a type 7 and type 8 injury); Brewer v. Maines, 309 A.D.2d 1088, 1089, 766 N.Y.S.2d 230, 230 (3d Dep't 2003) (holding that a 30% loss of use in the lumbosacral spine defeats a motion for summary judgment for a type 7 or type 8 injury); Swenning v. Moore, 140 A.D.2d 428, 429, 528 N.Y.S.2d 130, 131 (2d Dep't 1998) (holding that when right and left cervical rotation are diminished approximately 30%, summary judgment is denied for a type 8 injury); Livai v. Amoroso, 239 A.D.2d 565, 658 N.Y.S.2d 973 (2d Dep't 1997) (holding that a 20% restriction in the cervical spine and cervical radiculopathy is a type 8 injury and summary judgment is denied); Pagan v. Gondola Cab Corp., 235 A.D.2d 251, 251, 652 N.Y.S.2d 277, 278 (1st Dep't 1997) (holding that a 20% restriction in the cervical spine is a type 8 injury and summary judgment is denied).
In addition, Dr. Funicelli diagnosed disc bulges (Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 7). Although disc bulges by themselves are not a "consequential" or "significant" injury as a matter of law, a quantitative or comparative determination of the degree of injury combined with a diagnosis of bulging or herniated discs is sufficient to defeat a motion for summary judgment. See Toure, 98 N.Y.2d at 353, 764 N.Y.S.2d at 869 (holding that bulging or herniated discs by themselves, does not constitute a serious injury); see also Manzano v. O'neil, 98 N.Y.2d 345, 355, 764 N.Y.S.2d 865, 871 (2002) (holding that a diagnosis of herniated discs and description of the qualitative nature of the limitations based on the normal function, purpose, and use of the body parts is a serious injury). When combined with Dr. Funicelli's diagnosis of disc bulge, his quantitative measurement of limitation of motion is sufficient to raise a genuine issue of material fact.
Dr. Funicelli's diagnosis of disc bulge and a limitation of movement in the cervical spine differs from Drs. Katz's and Weiland's diagnosis of cervical strain resolved. (Moraldo Affirmation, Ex. D at 1, Ex. E at 1). Thus, due to the questions of fact raised by the chiropractor's affidavit and his conclusion that the injuries are permanent and continued therapy and treatment are essential, summary judgment for type 7 and type 8 injuries is denied.
Finally, plaintiffs claim that Scotto suffered a serious injury as a result of "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 activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" ("type 9 injury"). N.Y. Ins. Law § 5102(d) (Consol. 2004). "Substantially all" "should be 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, 455 N.Y.S.2d at 573; see also Szabo v. XYZ, 267 A.D.2d 134,135, 700 N.Y.S.2d 179, 179 (1st Dep't 1999) (holding that being able to perform one's job with minor limitations does not demonstrate a serious injury); Figuerora v. Torgerson, 147 A.D.2d 883, 885, 538 N.Y.S.2d 108, 110 (3d Dep't 1989) (holding that plaintiff's "return to full-time employment within 90 days of the accident confirms that [plaintiff's] daily activities were not so curtailed as to demonstrate a `serious injury'").
Scotto missed approximately three weeks of work as a result of the accident, and upon returning to work was able to maintain his daily routine as a social worker, though he was unable to turn his neck. (Moraldo Affirmation, Ex. F at 12-14). He also contends that his household and sporting activities were curtailed as a result of the accident, but has submitted no evidence to support that contention. Id. at 80-83. In fact, Scotto himself admits that his recreational sporting activities (running and weight lifting) were sporadic, and were not part of his usual activities. Scotto would do it "for a few months, then slack off, and then do it for a few months." (Moraldo Affirmation, Ex. F at 83). Scotto was impeded slightly, but was able to perform substantially all of his activities. As such, he is unable to claim a type 9 injury.
In sum, plaintiffs have presented sufficient evidence to dispute the contention that Scotto has not suffered a "serious injury." Although defendants' doctors concluded that Scotto's back problems have resolved themselves, plaintiffs' doctors found that Scotto suffers from a qualified and permanent limitation of motion in the cervical spine, as well as disc bulges and disc herniation.
Conclusion
There are outstanding questions of material fact that cannot be settled upon this motion for summary judgment. Accordingly, defendants' motion for summary judgment is denied.
SO ORDERED.