Rivera v. United States

Full title: ARACELIE RIVERA, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jul 31, 2012

10 Civ. 5767 (MHD) (S.D.N.Y. Jul. 31, 2012)

Opinion

10 Civ. 5767 (MHD)

07-31-2012

ARACELIE RIVERA, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

Gene L. Chertock, Esq. Subin Associates, LLP 150 Broadway New York, NY 10007 Susan Colleen Branagan, Esq. Assistant United States Attorney for the Southern District of New York 86 Chambers Street New York, NY 10007

MICHAEL H. DOLINGER, U.S.M.J.

MEMORANDUM & ORDER MICHAEL H. DOLINGER, U.S.M.J. :

Plaintiff Aracelie Rivera ("Rivera") filed suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, seeking to recover for injuries allegedly sustained in a motor vehicle accident in which her car was struck by a United States Postal Service ("USPS") vehicle. Plaintiff alleges that she suffered a serious injury as a result of this collision. The parties have consented to trial before me pursuant to 28 U.S.C. § 636(c).

Presently before the Court is defendant's motion for summary judgment. For the reasons that follow, defendant's motion is denied.

BACKGROUND

I. Factual Background

This lawsuit arises from an accident that occurred at approximately 9:30 p.m. on December 12, 2008 in Manhattan. (See Def.'s Rule 56.1 Statement ("Def.'s Rule 56.1") ¶ 1; Am. Resp. to Rule 56.1 Statement ("Pl.'s Rule 56.1") ¶ 1; Compl. ¶ 7). Plaintiff was in her motor vehicle, which was stopped at a red light on Tenth Avenue between 29^th and 30^th Streets, when she was struck by a USPS motor vehicle that was backing into a loading dock. (See Def.'s Rule 56.1 ¶¶ 1, 5; Compl. ¶¶ 7-10).

A. Medical Evidence

1. St. Vincent's Catholic Medical Center

Following the accident, plaintiff was transported by ambulance to St. Vincent's Catholic Medical Center's ("St. Vincent's") emergency room. (See Def.'s Rule 56.1 ¶ 3; Pl.'s Rule 56.1 ¶ 3). She reported that she was dizzy and nauseous and complained that her "neck hurt[]." (See Def.'s Rule 56.1 ¶¶ 4-5; Pl.'s Rule 56.1 ¶¶ 4-5). Doctors recorded that plaintiff had neck and back pain and that unidentified "official scans" showed "[no] acute injury to chest, abdomen, [and] pelvis." (See St. Vincent's Medical Records at GSt.Vin006, attached as Ex. E to the Decl. of Susan C. Branagan ("Branagan Decl.")). A Magnetic Resonance Image ("MRI") of plaintiff's cervical spine also revealed no acute injury. (See id.). Plaintiff was admitted overnight, prescribed Ambien and Vicodin, and referred for a neurosurgery consult. (See id. at GSt.Vin0006-07). An assessment of plaintiff's musculoskeletal system revealed no abnormalities, deformities, swelling or tenderness. (See id. at GSt.Vin0012). Doctors further noted that plaintiff's range of motion was "intact to affected area." (See id.).

Plaintiff had a CT-scan of the cervical spine, which revealed a "large central disc bulge¹ [at C4-5] with resultant spinal canal stenosis and flattening of the ventral aspect of the thecal sac² with questionable cord compression."³ (See id. at GSt.Vin0016). The report also noted that, "[g]iven the lack of degenerative changes and clinical presentation this finding may be acute." (Id.). Plaintiff also had an MRI that revealed "disc bulging" and a "right lateral recess/neural foramen disc herniation"⁴ at C5-C6. (See id. at GSt.Vin0049).

1 A "[b]ulging disk [refers to the] extension of a disk more than 2 mm beyond the margin of an adjacent vertebral body." Dan J. Tennenhouse, Attorneys' Medical Deskbook § 24:17 (4th ed. 2006-2011), available at Westlaw MEDDESK.

2 The thecal sac is "an enclosing case or sheath, as of a[] . . . tendon." Dorland's Illustrated Medical Dictionary, 1822 (29th ed. 2000).

3 Cervical vertebrae are numbered C1 through C7. Dorland's, supra note 2, at 261.

4 A herniated disc is a "general term that means any extension of a disk beyond the margin of an adjacent vertebral body." Tennenhouse, supra note 1, § 24:17. A hernia can occur as the result of either trauma or natural degeneration. See William H. Danne, Jr., et al., 110 N.Y. Jur. Workers Compensation § 514 (2d ed. 2012) ("Hernias occur at sites where the containing wall is congenitally weak or has weakened from trauma (especially surgical resection), strain, age, or similar factors.").

B. Treating Physicians

On December 23, 2008, plaintiff was evaluated by Dr. Aric Hausknecht, a board-certified neurology and pain-management specialist. (See Medical Records of Dr. Hausknecht at GHaus0013, attached as Ex. G to the Branagan Decl.).⁵ Dr. Hausknecht found that plaintiff had measurable weakness in her right-shoulder abductor, her left-shoulder abductor, both hip flexors, right-ankle dorsif lexior,⁶ and the grip strength of her left hand. (See id. at GHaus0014). Dr. Hausknecht also noted that plaintiff had tenderness in the right temple and zygomatic region; cervical paravertebral tenderness and associated muscle spasm; and lumbosacral paravertebral tenderness and associated muscular spasm. (See id. at GHaus0015). He performed a straight-leg-raise test⁷ and found that plaintiff tested "positive on the right at 65 degrees [and] on the left at 75 degrees." (Id.). Dr. Hausknecht objectively measured plaintiff's range of motion in the affected areas using an arthrodial protractor and goniometer. (See id.).⁸ She had reduced range of motion in both her cervical and her lumbar spine. (See id.).

5 All of Dr. Hausknecht's reports are sworn under penalty of perjury. (See Branagan Decl. Ex. G).

6 Dorsiflexion is "[f]lexion or bending toward the extensor aspect of a lumb, as of the hand or foot." Dorland's, supra note 2, at 540.

7 A straight-leg-raise test is used to indicate wether the patient has an injury to the lumbar spine, such as a slipped disc or pinched nerve. It does not typically indicate injury to the cervical spine. (Hausknecht Dep. 30:6-12). Muscle spasms or pain induced by straight leg raising may suggest inter-vertebral disc disease or other back problems, such as sciatica. Merck Manual of Diagnosis and Therapy, 325, 327 (18th ed. 2006).

8 An arthrodial protractor and a goniometer are tools used to measure the patient's range of motion, which is measured in degrees. An arthrodial protractor is a plaque comprised of a scale and different angle markers. A goniometer is comprised of two rules connected at one end by a hinge off of which a scale hangs. (Hausknecht Dep. 30:20-31:3).

Dr. Hausknecht advised plaintiff to begin a course of physical therapy and chiropractic treatment; he also prescribed Naprosyn,⁹ Vicodin,¹⁰ and Ambien to take as needed. (See id.). A second MRI of plaintiff's cervical and lumbar spine was recommended to assess the possibility of traumatic disc injury based on "the traumatic nature of her injuries" and the abnormal examination findings. (See id. at GHaus0016). Dr. Hausknecht also noted that "[w]ith a reasonable degree of medical certainty, [plaintiff's] injuries are causally related to the motor vehicle accident that occurred on [December 12, 2008]." (Id.). He continued that "[plaintiff] is totally disabled and I have advised her to restrict her activities. Prognosis is guarded." (Id.).

9 A "nonsteroidal anti-inflammatory agent . . . used for treatment of osteoarthritis and rheumatoid arthritis." Dorland's, supra note 2, at 1177.

10 "Hydrocodone is a semisynthetic narcotic analgesic and antitussive with multiple actions qualitatively similar to those of codeine. Most of these involve the central nervous system and smooth muscle. The precise mechanism of action of hydrocodone and other opiates is not known, although it is believed to relate to the existence of opiate receptors in the central nervous system. In addition to analgesia, narcotics may produce drowsiness, changes in mood and mental clouding." Physicians' Desk Reference ("PDR"), 0040-7310 (64th ed. 2012) ("PDR"), available at Westlaw PDR.

Plaintiff saw Dr. Hausknecht again on February 3, 2009. (See id. at GHaus0011). On this date, Dr. Hausknecht noted that plaintiff was receiving physical therapy and chiropractic treatment, but that neither seemed to be working. (See id.). She was taking Vicodin as needed for pain. (Id.). Plaintiff reported problems with activities of daily living, including sitting, standing, bending, lifting and carrying. (See id.).

Dr. Hausknecht's notes indicate that plaintiff had undergone a second MRI of the cervical spine on January 26, 2009 (see id. Ex. H (MRI record)), which revealed a disc herniation at C4-5 with cord compression and acquired central stenosis, and disc herniation at C5-6 with bilateral C6 nerve root impingement. (See id. & Ex. G, at GHaus0011). The MRI of the lumbar spine revealed a disc bulge at L5-S1.¹¹ (See id. Ex. G, at GHaus0011). Dr. Hausknecht also noted that plaintiff had continuing weakness in her shoulders and grip strength and "paravertebral tenderness and associated muscular spasm." (Id.). Dr. Hausknecht recommended that plaintiff continue with physical therapy, but noted that if there was no improvement in three to four weeks "more aggressive intervention will likely be required." (Id. at GHaus0012). In addition to Vicodin, Dr. Hausknecht prescribed plaintiff a course of oral steroids. (See id.).

11 The lumbar vertebra are indicated by L1 through L5. Dorland's, supra note 2, at 952. The sacral vertebrae are indicated by S1 through S5. Id. at 1591.

Plaintiff visited Dr. Hausknecht again on April 9, 2009. (See id. at GHaus0009). She reported that she had experienced "temporary relief" after physical therapy treatments and that the oral steroid course had been "extremely effective" but had lasted for only several days. (Id.). She was taking Vicodin, Flexeril,¹² and Ambien. (Id.). Plaintiff complained that she still experienced neck and back pain, that the neck pain radiated to both of her arms, that her hands felt weak, and that her right foot felt numb. (Id.).

12 A medicine used to treat muscle spasms. PDR, supra note 10, at 9216-0350.

Upon physical examination, Dr. Hausknecht noted that plaintiff had weakness in her left shoulder abductor and had cervical and lumbosacral paravertebral tenderness and associated muscular spasm. (See id.). Dr. Hausknecht also noted that plaintiff had pain and weakness in her hip flexors and a reduced range of motion relating to her injuries. (See id.). He discussed with plaintiff the results of her MRI and opined for the first time that she required cervical spine surgery. (See id. at GHaus0010).

Dr. Hausknecht evaluated plaintiff again on January 20, 2011, more than two years after the 2008 accident. (See id. at P00004). He provided a thorough review of her history, including a summary of all of her medical evaluations since the accident. (See id. at P00004-06). Dr. Hausknecht noted that plaintiff had been involved in a motor vehicle accident prior to December 12, 2008, but reported that she had been "asymptomatic prior to the accident of [December 12, 2008]." (Id. at P00006). Dr. Hausknecht noted "4+ weakness of both [of plaintiff's] shoulder abductors[,]" "hypoesthesia to light touch in C5 distribution bilaterally[,]" and "cervical paravertebral tenderness and associated muscular spasm." (Id. at P00007). He also found lumbosacral paravertebral tenderness. (Id.). Dr. Hausknecht evaluated plaintiff's range of motion using an arthrodial protractor and goniometer and found reduced range of motion in movements relating to plaintiff's cervical and lumbosacral spine. (See id. at P00007-08). He also reported the results of plaintiff's third MRI, performed on March 5, 2010, which revealed a disc herniation at C4-5 and C5-6 with cord impingement, a disc bulge at C6-7 and a disc bulge at L3-4 through L5-S1 as well as hypertrophic changes. (See id. at P00008; Pl.'s Mem. of Law in Opp'n to Def.'s Mot. ("Pl.'s Opp'n") Ex. A, at 16 (MRI record)). He found that plaintiff had been symptomatic for over two years and that "[w]ith a reasonable degree of medical certainty, her condition is permanent in nature." (Id. at P00009). Moreover, he concluded that "[w]ith a reasonable degree of medical certainty, [plaintiff had] sustained permanent consequential limitation of use of her cervical and lumbosacral spine." (Id.). Dr. Hausknecht recommended that plaintiff undergo cervical spine surgery, as she had exhausted her other options. (Id.).

Several other doctors examined plaintiff in the wake of the December 2008 accident. Dr. Ronald M. Silverman performed an independent neurological examination of plaintiff on May 11, 2009, six months after her accident. (See Medical Records of Dr. Silverman at GSilver0001, attached as Ex. I to the Branagan Decl.).¹³ Dr. Silverman found that, at the time of his examination, plaintiff's "neurologic exam" was "essentially normal." (See id. at GSilver0003). He continued that "[t]here is a grossly nonanatomic report of sensory loss by [plaintiff] involving the entire right arm and right leg. Mechanical examination is also normal. There was no palpable spasm in the cervical or lumbar spine." (Id.). Dr. Silverman concluded that plaintiff had no further need for treatment in the specialty of neurology. (See id.). He found that plaintiff had suffered a cervical and lumbar sprain as a result of the accident on December 12, 2008, but that these injuries had since resolved. (See id.). Accordingly, Dr. Silverman found no objective evidence of disability from a "neurologic point of view" and recommended that plaintiff return to work and normal daily living activities. (Id.). He further found that there was no need for her to undergo physical therapy or surgery. (See id.).

13 Dr. Silverman's medical reports are sworn under penalty of perjury. (See Branagan Decl. Ex. I).

Dr. Silverman issued an addendum to his original medical evaluation on August 17, 2009. (See id. at Gsilver0005). The addendum was based on a subsequent neurosurgical consultation performed by Dr. John K. Houten, the records of which were provided to Dr. Silverman. (See id.). Dr. Silverman noted that plaintiff provided a different history to Dr. Houten than she had provided to him. (See id.). Dr. Silverman explained that although the two examinations had occurred within weeks of each other, plaintiff had reported different symptoms to the two doctors. (See id. at GSilver0006). Dr. Silverman did not alter his conclusions based on this additional information. (Id.).

Dr. Houten, a neurosurgeon, evaluated plaintiff on May 27, 2009, after she had received a referral from Dr. Hausknecht. (See Medical Evaluation of Dr. Houten at GRos0037, attached as Ex. J to the Branagan Decl.).¹⁴ Dr. Houten's neurological examination revealed "prominent weakness in multiple muscle groups in the right upper extremity with upper motor neuron findings including hyperreflexia and some discoordinated gait." (Id. at GRos0038). Dr. Houten also found, based on the MRI, that plaintiff had a disc herniation at C4-5, causing spinal cord compression and probable T2¹⁵ cord change.¹⁶ (See id.). In contrast to Dr. Silverman, Dr. Houten concluded that "surgical decompression is strongly indicated to forestall the development of worsening neurologic function or even paralysis." (Id.). He recommended that such surgery be done "expeditiously," as it was unwise "to let a significant amount of time pass with the persistent cord compression." (Id.).

14 Dr. Houten's medical report is unsworn. (See Branagan Decl. Ex. J).

15 T2 refers to the "second thoracic vertebra." Tennenhouse, supra note 1, § 5:22.

16 "[P]robable T2 cord change" likely refers to a change in the MRI signal intensity related to the spinal cord near the second thoracic vertebra. "MRI interpretation depends chiefly on locating and characterizing signal abnormalities and deciding what alterations in tissue are causing these abnormalities. Much of this interpretation depends on MRI signal intensities, which range from very high ('bright' or 'white') to very low ('dark' or 'black'). The changes in signal intensity are based on tissue features and technical parameters used to image these tissues." Hemant Parmar & Jonathan D. Trobe, A "First Cut" at Interpreting Brain MRI Signal Intensities: What's White, What's Black, and What's Gray, 30 J. Neuro-Ophthalmology 91, 91 (2010).

Dr. Hausknecht also referred plaintiff to Dr. Andrew Merola, an orthopedic surgeon, for a spinal-surgery evaluation. (See Medical Evaluation of Dr. Merola at GMero0004, attached as Ex. K to the Branagan Decl.).¹⁷ Dr. Merola examined plaintiff on June 1, 2009 and concluded that she was a good candidate for cervical disc replacement at the C4-5 segment. (See id.). He indicated at that visit that plaintiff's January 26, 2009 MRI reflected "significant" herniation at C4-C5, small herniation at C5-C6, and focal kyphosis¹⁸ at C4-C5. (Id.). He also "appreciated" lumbar-spine disc bulges. (Id.). Plaintiff had a follow-up appointment with Dr. Merola on November 16, 2009, at which he continued to recommend spinal surgery as "medically necessary and reasonable." (See id. at GMero0005).

17 Dr. Merola's June 1 medical report is unsworn. (See Branagan Decl. Ex. J).

18 "Curvature of the thoracic spine (hunchback)." Tennenhouse, supra note 1, § 5:13.

Dr. Saran S. Rosner, a neurosurgeon, performed an independent medical examination of plaintiff on October 23, 2009. (See Medical Examination of Dr. Rosner at GRos0007, attached as Ex. L to Branagan Decl.).¹⁹ Dr. Rosner concluded that plaintiff had "sustained a hyperextension/hyperflexion injury to her cervical and lumbar spine with radiculitis as a result of her motor vehicle accident of December 12, 2008. As a result of that accident, [plaintiff] developed acute disc herniations at C4-C5 and C5-C6 with cord and root compression." (Id. at GRos0012). However, Dr. Rosner also noted that plaintiff did not have "any significant neurological deficit" at the time of the evaluation, was able to work, and did not require assistance in activities of daily living. (See id.). Dr. Rosner recommended that plaintiff undergo additional MRI scanning before any specific treatment was contemplated, because her current scans were eight months old. (See id.).

19 Dr. Rosner's medical report is sworn under penalty of perjury. (See Branagan Decl. Ex. L).

Dr. Patrick F. O'Leary, a spinal surgeon and one of plaintiff's treating doctors, evaluated plaintiff on February 18, 2011. (See Medical Evaluation of Dr. O'Leary at GOLeary0005, attached as Ex. N to Branagan Decl.).²⁰ He found that plaintiff had "sensitivity on palpation over the posterior spinal process of her neck diffusely from C2 to C7." (Id. at GOLeary0006). He found that her range of motion of the cervical spine was "full and complete, except for discomfort with extremes of turning to the left in extension." (Id.). Plaintiff's MRI scans revealed that she had initially had a "disc herniation at C4-5 which ha[d] gotten smaller." (Id.). Plaintiff also had "foraminal compression and dysfunction of the C6 nerve on the right side . . . ." (Id.). Dr. O'Leary diagnosed plaintiff with "discogenic pain [that] most likely relate[d] to the [accident]," and concluded that she might benefit from an interbody fusion at C4-5 and C5-6, but that there was no "urgency" to the procedure. (See id. at GOleary0006-07). He was uncertain whether the surgery would resolve her complaints fully, but believed that it was a reasonable consideration based upon the duration of her symptoms. (Id. at GOleary0007).

20 Dr. O'Leary's medical report is unsworn. (See Branagan Decl. Ex. N). Thus, defendant can invoke his report in support of its summary-judgment motion, but it is inadmissable as evidence in opposition to that motion and therefore will not be considered for that purpose.

Defendant retained an expert medical witness, Dr. Howard Kiernan, who evaluated plaintiff's available medical records from both her 1996 accident, and those relating to her treatment after the 2008 accident, and performed a physical examination of her on June 3, 2011. (See Report of Dr. Kiernan at GKier0001, attached as Ex. O to Branagan Decl.; Decl. of Howard A. Kiernan, JR, M.D. ("Kiernan Decl."), Jan. 20, 2012 (declaration incorporating findings of the June 3 examination)). He found a limited range of cervical motion, and some mild muscle spasm in her lumbar spine. (Branagan Decl. Ex. O, at GKier0004; Kiernan Decl. ¶ 13). He concluded that she demonstrated "axial neck pain only," and not radiculopathy or myelopathy.²¹ (Branagan Decl. Ex. O, at GKier0007; Kiernan Decl. ¶ 22). Dr. Kiernan concluded that she had no objective signs of neurological injury and that there was no need for her to undergo spinal surgery. (Branagan Decl. Ex. O, at GKier0008; Kiernan Decl. ¶ 25). He also concluded that plaintiff's injuries were the result of a chronic and long-lasting degenerative disc disease and/or the result of a whiplash injury that plaintiff had suffered during a motor vehicle accident on August 9, 1996. (Branagan Decl. Ex. O, at GKier0008; Kiernan Decl. ¶¶ 24-25).

21 Myelopathy is a "[d]isorder of the spinal cord" or a "disease of the myelopoietic tissues." Stedman's Medical Dictionary, Myelopathy, at 264850 (27th ed. 2000), available at Westlaw STEDMANS.

C. Plaintiff's Prior Injuries

On August 9, 1996, plaintiff was a restrained passenger in a car that was involved in a motor vehicle accident. (See Def.'s Rule 56.1 ¶ 90). On December 21, 1996, she submitted a claim for treatment of cervical²² and lumbosacral²³ strain/sprain -- whiplash -- to Allstate Insurance Company. (See id. ¶ 91; Branagan Decl. Ex. A, at GAlls0018). Plaintiff apparently experienced some pain and other symptoms in her neck and back after this accident. (See Def.'s Rule 56.1 ¶¶ 93-94; Branagan Decl. Ex. B). As of 1999, plaintiff's "chief complaint" related to her injuries arising from 1996 accident was buckling of the left knee, although she described "occasional" pain in the cervical spine and mid-back, particularly while seated. (See Branagan Decl. Ex. B, at GCapo0008). On May 24, 1999, Dr. James D. Capozzi, to whom plaintiff was apparently referred by a Dr. Gregory Cerchione, opined that her back and neck pain were likely the result of a soft-tissue sprain in the affected areas, and concluded that plaintiff demonstrated evidence of a possible tear of the medial meniscus of the left knee. (Id. at GCapo0009).²⁴ The last treatment records appearing in the record that are related to the 1996 accident are from 1999. (See Branagan Decl. Ex. B).

22 The neck. Tennenhouse, supra note 1, § 5:5.

23 Referring to the lower back. Tennenhouse, supra note 1, § 24:17.

24 Plaintiff had brought suit in connection with the 1996 accident in New York State Court, Bronx County, in 1999. (See Branagan Decl. Ex. C, at GBxCt0017-25). Nothing in the record indicates whether or how this case was resolved.

D. Deposition Testimony

Plaintiff appeared for a deposition in this case and testified about the effects of her injuries on her daily living and occupation. (See Tr. of Dep. of Aracelie Rivera ("Rivera Dep."), attached as Ex. Q to the Branagan Decl., at 24).²⁵ She explained that she had "crucial" pain in her neck, and went into great detail describing the persistent numbness and tingling in her hands and elbows. (See id. at 112:4-114:16). She testified that her injuries affected her ability to exercise and that she has constant pain in her lower back. (See, e.g., id. at 25:4-5, 28:5-16, 30:3-10). Plaintiff explained that after the accident she did not feel like going out because of pain and discomfort. (See id. at 24:10-17). Nevertheless, following the accident, she continued to run errands, including going grocery shopping and picking up prescriptions for her mother, because she had "nobody else [that would] do [them] for [her]." (See id. at 24:18-25:17).

25 The record does not indicate plaintiff's initial deposition date, but her deposition was continued on May 9, 2011. (Rivera Dep. at 101).

Plaintiff also testified that the accident affected her ability to work. She works as an insurance saleswoman for Aflac, and gets paid solely on a commission basis. (Id. at 83:5-17). As of that date, plaintiff testified that it was "still . . . difficult" for her to work, so she had to give her colleagues a cut of her sales business. (Id. at 83:6-10). After the accident, she was able to work for only one day per month, whereas prior to the accident she worked full time. (See id. at 83:14-25). At the time of her deposition, she was able to work "may[be] half of a month." (Id. at 83:22-25). She only takes the train to work on ceratin days depending on her level of pain. (Id. at 117:2-19). Plaintiff acknowledged that in July 2009 she had traveled to Aruba in conjunction with a work convention. (See id. at 141:6-12). Plaintiff also traveled to Key West in July 2010 and to the Bahamas in October 2010. (See id. at 146-48).

Dr. O'Leary, one of plaintiff's treating doctors, appeared for a deposition on September 6, 2011. (See Tr. of Dep. of Dr. O'Leary ("O'Leary Dep."), attached as Ex. P to the Branagan Decl.). Dr. O'Leary testified that plaintiff had initially complained of weakness and numbness, which he did not find when he examined her. (See id. at 14:13-15:2). He testified that, upon his examination, plaintiff had good range of motion. (See id. at 16:23-24). He further testified that she had a normal neurological examination (see id. at 22:6-7), and that, while spinal surgery may relieve some of her symptoms, there was no urgency to the operation. (See id. at 21:18-19).

Dr. Hausknecht appeared for a deposition on July 8, 2011. (See Dep. of Dr. Aric Hausknecht ("Hausknecht Dep."), attached as Ex. C to Pl.'s Opp'n, at 1). He testified that plaintiff's subjective complaints were supported by objective medical evidence, specifically the physical examinations that he had performed of her on December 23, 2008, February 3, 2009, April 9, 2009, and January 20, 2011. (See, e.g., Hausknecht Dep. 90:7-91:10). He also testified that, "based upon the history, the physical examination, the review of medical records and diagnostic tests, and based upon [his] fund of knowledge and clinical experience[,]" plaintiff's injuries were caused by the December 12, 2 008 accident. (See id. at 99:7-16). He specifically testified that it was "unlikely" that her injuries were caused by a preexisting condition because "[s]he was not having any problems prior to the accident . . . ," and "[f]ollowing the impact on [December 12, 2008] she started experiencing pain right away, [and] the hospital staff identified abnormal acute traumatic findings consistent with neck and back injuries." (Id. at 103-05). Dr. Hausknecht testified that he was aware of plaintiff's prior injuries following the August 9, 1996 accident, but that he did not believe that her present injuries were related to the earlier accident. (See id. at 100-01).

E. Recent Medical Evidence ²⁶

26 Shortly following the close of briefing on defendant's summary-judgment motion, plaintiff made a 56(d) application to reopen discovery for sixty days in light of updates in her medical treatment. She also requested corresponding leave to supplement her Rule 56 papers. We granted the latter request, allowing her to supplement her Rule 56 papers by February 15, 2012. Plaintiff filed her supplemental papers on February 24, 2012, acknowledging the late filing and explaining that counsel had only recently been provided with the medical records of her recent surgery. Defendant's response to plaintiff's supplement was timely filed on March 6, 2012. Plaintiff then filed an additional supplement, without leave of the court, by letter dated March 21, 2012. Defendant substantively responded on March 28, 2012 by filing a March 26, 2012 declaration of its expert, Dr. Kiernan, and also submitted a letter request that we not consider plaintiff's second supplemental proffer. Although defendant asked that we not consider plaintiff's second supplement (see Letter from Assistant United States Attorney Susan Branagan, Mar. 26, 2012), we will do so for completeness of the record.

On January 25, 2012, plaintiff underwent anterior cervical discectomy and fusion surgery on the fourth, fifth, and sixth cervical vertebrae. (See Letter from Dr. Hausknecht ("Hausknecht Letter"), Mar. 8, 2012,²⁷ attached to Letter to the court from Gene L. Chertock, Esq., Mar. 21, 2012).²⁸ A pre-operation MRI of plaintiff's cervical spine, taken on January 20, 2012, revealed a small central disc herniation or osteophyte complex²⁹ without cord compression at C3-4. (See Decl. in Opp'n to Def.'s Mot. Ex. A, Feb. 24, 2012). It also revealed a small- to medium-sized central and right-side disc herniation with mild disc bulge resulting in cord compression at C4-5, and mild disc bulging and spondylosis³⁰ at C5-6. (Id.). Dr. Hausknecht's post-operative examination of plaintiff led him to conclude that she remains totally disabled and must restrict her daily activities. (See Hausknecht Letter). An MRI taken one day post-surgery revealed post-operative changes at C5 through C7, the site of the operation. (Id. at 2).³¹

27 This report is sworn under penalty of perjury.

28 Plaintiff's surgeon identified eleven discreet procedures performed during her operation: (1) right-sided approach to the anterior cervical spine; (2) anterior cervical diskectomy at C4-5, C5-6; (3) decompression of the spinal cord; (4) resection of the posterior longitudinal ligament; (5) bilateral neural foraminotomies; (6) excision of the herniated nucleus pulposus at C4-5 and C5-6; (7) preparation for fusion; (8) application of a biomechanical interbody device to interbody space for arthrodesis; (9) application of an allograft to the anterior interbody space for arthrodesis at C4-5 and C5-6; (10) application of a VG2 bone graft to the anterior interbody space at C4-5 and C5-6; and (11) anterior instrumentation at C4-C6 of a synthes CSLP plate. (See Decl. in Opp'n to Def.'s Mot. Ex. A, Feb. 24, 2012).

29 A bony nodule. Tennenhouse, supra note 1, § 24:19. Osteophytes are usually the result of a degenerative process, but they can occasionally be post-traumatic. (See O'Leary Dep. 9:9-15).

30 "A disease, such as osteoarthritis, of a vertebra." Tennenhouse, supra note 1, § 12:5.

31 On January 25, 2012, Dr. Matusz, plaintiff's surgeon, identified six pre-operative diagnoses that remained the same post-operation: (1) cervical disc herniation; (2) neural foraminal stenosis; (3) kyphosis; (4) instability; (5) cervicalgia; and (6) radiculopathy. (See Decl. in Opp'n to Def.'s Mot. Ex. A, Feb. 24, 2012).

On February 2, 2012, Dr. Matusz saw plaintiff for a post-operative visit. He reported that she was doing well and that her "presurgical symptoms [had] resolved completely." (See Decl. in Opp'n to Def.'s Mot. Ex. A, Feb. 24, 2012).³² In contrast, on March 8, 2012, Dr. Hausknecht determined that plaintiff still suffered from cervical derangement with bilateral C5-6 radiculopathy, and lumbosacral derangement with L5-S1 disc bulge following her operation. (Hausknecht Letter). He again considered plaintiff to be "totally disabled" and recommended that, when appropriate, she should begin post-operative physical therapy. (Id.).

32 This report is unsworn.

Defendant's expert, Dr. Kiernan, reviewed plaintiff's medical records, including the January 25, 2012 operative report by Dr. Matusz. (See Supplemental Decl. of Howard A. Kiernan, M.D. ("Kiernan Supp. Decl.") ¶¶ 2-7). Dr. Kiernan also reviewed plaintiff's January 20, 2012 MRI, which revealed a small central disc herniation or disc osteophyte complex without cord compression at C3-C4; small- to medium-sized central and right-sided disc herniation/disc osteophyte complex and underlying mild disc bulging resulting in mild to moderate cord compression at C4-C5; mild disc bulging and spondylosis present at C5-C6 slightly asymmetric to the right without cord compression; mild-to-moderate right and mild left foraminal stenosis at C5-C6, with the remaining neural foramina as patent; and mild disc-space narrowing at C4-C5 and C5-C6 with decreased disc signal on T2 weighted images due to disc degeneration. (See id. ¶ 11). He opined that plaintiff's medical records, as well as the January 2012 MRI results, "show[ed] that plaintiff's condition was degenerative" and not a result of the December 12, 2008 accident. (Id. ¶¶ 3, 12-14). His opinion was not altered by plaintiff's surgery or subsequent medical reports and examinations. (See id. ¶ 14).

DISCUSSION

I. Legal Standards

A. Summary Judgment

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried, and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986); Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 98 (2d Cir. 2003). The burden of demonstrating the absence of any genuine dispute as to a material fact rests upon the party seeking summary judgment, see Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970), but once a properly supported motion for summary judgment has been made, the burden shifts to the nonmoving party to make a sufficient showing to establish a triable dispute as to the essential elements of that party's case on which it bears the burden of proof at trial. See Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (citing Celotex, 477 U.S. at 322).

"A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1). Facts may be set forth in affidavits, but "[a]ffidavits submitted in support of or in opposition to the summary-judgment motion must 'be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'" Patterson, 375 F.3d at 219 (quoting Fed. R. Civ. P. 56(c)). Thus, hearsay and conclusory assertions which would not be admissible at trial cannot serve to create a genuine issue for trial. See id. In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the Court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Patterson, 375 F.3d at 219; Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004).

B. New York's No-Fault Insurance Law

Plaintiff brings her claim pursuant to the FTCA. See 28 U.S.C. §§ 1346 & 2671. In any action under the FTCA, the Government's liability is determined by the law of the state where the accident occurred. Berroa v. United States, 2010 WL 532862, at *3 (S.D.N.Y. Feb. 5, 2010); Patrello v. United States, 757 F. Supp. 216, 218 (S.D.N.Y. 1991). Here, the accident occurred in New York, and New York law governs the action.

Every car owner in New York must carry automobile insurance, which will compensate injured parties for their "basic economic loss" caused by the use or operation of that automobile in New York, irrespective of fault. Pommells v. Perez, 4 N.Y.3d 566, 571, 797 N.Y.S.2d 380, 382 (2005) (citing N.Y. Ins. Law §§ 5102(a), 5103). "Only 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. (citing N.Y. Ins. Law § 5104(a)).

New York's "No-Fault Insurance Law" limits recovery for non-economic injuries (i.e., pain and suffering) sustained in accidents involving motor vehicles, such as the accident at issue here, to "serious injuries." See N.Y. Ins. Law §§ 5102(d), 5104(a); Goodkin v. United States, 773 F.2d 19, 21-22 (2d Cir. 1985); Gay v. Cevallos, 2011 WL 2015528, at *4 (S.D.N.Y. May 17, 2011). Hence, plaintiff can only recover for her pain and suffering if she establishes that she suffered from a serious injury. In addition, "[t]o qualify for payment, the claimant must show that the insured motor vehicle was the 'actual instrumentality' which produced the injury, that is, the motor vehicle must have been the proximate cause of the claimant's damages." Sochinski v. Bankers & Shippers Ins. Co., 221 A.D.2d 889, 889, 634 N.Y.S.2d 269, 269-70 (3d Dep't 1995) (quoting Matter of Manhattan & Bronx Surface Tr. Operating Auth., 71 A.D. 2d 1004, 1005, 420 N.Y.S. 2d 298, 299 (2d Dep't 1979)); accord Valentin v. Pomilla, 59 A.D.3d 184, 184-85, 873 N.Y.S.2d 537, 538 (1st Dep't 2009). Where a plaintiff offers insufficient objective medical evidence for a jury to find that the accident at issue was the cause of the plaintiff's injuries, then summary judgment for the defendant is appropriate. Gay, 2011 WL 2015528, at *5 (citing cases).

The statute specifically identifies nine types of "serious injuries," three of which are at issue here: (1) a "permanent consequential limitation of use of a body organ or member" (the "permanent consequential limitation" category); (2) a "significant limitation of use of a body function or system" (the "significant limitation" category); and (3) "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" (the "90-180" category). N.Y. Ins. Law § 5102(d).

The purpose of New York's No-Fault Insurance Law is "'to weed out frivolous claims and limit recovery to significant injuries.'" Bewry v. Colonial Freight Sys., 2002 WL 31834434, at *2 (S.D.N.Y. Dec. 17, 2002) (quoting Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 902 (1995)). For this reason, whether "the evidence would warrant a jury finding that the injury qualifies as a 'serious injury'" is a threshold question for the court to decide. Yong Qin Luo v. Mikel, 625 F. 3d 772, 776-77 (2d Cir. 2010) (citation omitted).

"[O]n summary judgment, a defendant must establish a prima facie case that plaintiff did not sustain a 'serious injury' within the meaning of Insurance Law § 5102(d)." Yong Qin Luo, 625 F.2d at 777 (internal citation omitted). To do this, the defendant may rely on unsworn reports by the plaintiff's physicians, but must provide evidence from its own physicians in the form of sworn affidavits. Berroa, 2010 WL 532862, at *3. Once the defendant has met this burden, the plaintiff must rebut with sufficient admissible evidence to raise a genuine issue of fact as to whether the plaintiff has sustained a serious injury. See Yong Qin Luo, 625 F.2d at 777 (quoting Barth v. Harris, 2001 WL 736802, at *2 (S.D.N.Y. June 25, 2001)). Because subjective complaints alone cannot defeat summary judgment, a plaintiff must offer objective proof of an injury. See Toure v. Avis Rent A Car Sys. Inc., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 868 (2002) (citation omitted). Plaintiff must therefore offer admissible evidence in the form of sworn affidavits or reports by physicians, or sworn medical test records, such as MRI reports. E.g., Berroa, 2010 WL 532862, at *3; Garner v. Tong, 27 A.D.3d 401, 401, 811 N.Y.S.2d 400, 400 (1st Dep't 2006); Raitport v. Travelers Cos., 209 A.D.2d 363, 364, 619 N.Y.S.2d 556, 556 (1st Dep't 1994).³³ As long as the plaintiff adduces sufficient objective evidence from which a jury could find that she sustained a serious injury, summary judgment must be denied "notwithstanding some contrary probative evidence." Nasrallah v. Helio De, 1998 WL 152568, at *8 (S.D.N.Y. Apr. 2, 1998).

33 "Statements and reports that are unsworn and not affirmed to be true under the penalty of perjury are inadmissible in opposition to a motion for summary judgment." Jimenez v. Gubinski, 2012 WL 279432, at *8 (S.D.N.Y. Jan. 30, 2012) (citing, inter alia, McLoyrd v. Pennypacker, 178 A.D.2d 227, 228, 577 N.Y.S.2d 272, 273 (1st Dep't 1991)). However, "if sworn affirmations by both parties' experts rely on the same underlying reports, those reports may properly be considered by the court." (citing Komarov v. C.P.S. Servs., Inc., 2008 WL 4282619, at *4 n.4 (E.D.N.Y. Sept. 16, 2008) (citing Pommells, 4 N.Y.3d at 577 n.5, 797 N.Y.S.2d at 385 n.5)).

1. Permanent Consequential Limitation or Significant Limitation

The Second Department has described in detail the difference between a permanent consequential limitation and a significant limitation:

The essential difference between these two types of 'serious injury' is that the 'significant limitation of use of a body function' does not require permanence, but instead requires a fact finding on the issue of whether the dysfunction is important enough to reach the level of significance. Similarly, the 'permanent loss of . . . a body . . . function' does not involve in any fashion the element of significance, but only that of permanence. Indeed, if it did, there would be no need to list 'significant limitation of use of a body function' in a separate category.

Miller v. Miller, 100 A.D.2d 577, 578, 473 N.Y.S.2d 513, 514 (2d Dep't 1984).

"To establish a claim under the permanent consequential limitation or significant limitation of use categories, the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system." Clark v. Basco, 83 A.D.3d 1136, 1139, 921 N.Y.S.2d 345, 348 (3d Dep't 2011) (internal quotations omitted). "In order to raise a triable issue of fact, plaintiff['s] claim that [her] range of motion is limited must be sustained by objective medical findings that are 'based on a recent examination.'" Bent v. Jackson, 15 A.D.3d 46, 48, 788 N.Y.S.2d 56, 58 (2005) (quoting Grossman v. Wright, 268 A.D.2d 79, 84, 707 N.Y.S.2d 233, 237 (2d Dep't 2000)). "[B]ulging or herniated discs are not, in and of themselves, evidence of serious injury without competent objective evidence of the limitations and duration of the disc injury." DeJesus v. Paulino, 61 A.D.3d 605, 608, 878 N.Y.S.2d 29, 32 (1st Dep't 2009) (citing Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d at 384; Toulson v. Young Han Pae, 13 A.D.3d 317, 319, 788 N.Y.S.2d 334, 336 (2004)).

Furthermore, to prove that plaintiff suffered a significant limitation, she must demonstrate "that she suffered from 'something more than a . . . minor, mild or slight limitation of use.'" Ventra v. United States, 121 F. Supp.2d 326, 333 (S.D.N.Y. 2000) (alteration in original) (quoting Licari v. Elliott, 57 N.Y.2d 230, 236, 441 N.E.2d 1088, 1091 (1982)). The limitation must be significant in degree and duration, Gualtieri v. Farina, 283 F.Supp.2d 917, 925 (S.D.N.Y. 2003), and "[t]he significance of the limitation must be supported by credible medical evidence and must be objectively measured and quantified." Ventra, 121 F. Supp.2d at at 333-34.

"Tests such as 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." DeJesus v. Rafael, 2003 WL 21305358, at *2 (S.D.N.Y. June 5, 2003) (citations omitted). Other objective evidence, such as straight-leg-raise tests, range-of-motion tests, and observations of spasms by a treating physician, can also be sufficient to withstand a summary-judgment motion. See id.; see also Adetunji v. U-Haul Co. of Wis., Inc., 672 N.Y.S.2d 869, 870, 250 A.D.2d 483, 483 (1st Dep't 1998). "[A]n expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system." Hodder v. United States, 328 F. Supp.2d 335, 349 (E.D.N.Y. 2004) (quotation omitted). Specifically, "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury." Id. (internal quotation marks omitted).³⁴

34 "While there is no set percentage for determining whether a limitation in range of motion is sufficient to establish 'serious injury,'" New York courts "have generally found that a limitation of twenty percent or more is significant for summary-judgment purposes." Hodder, 328 F. Supp.2d at 356 (citing cases).

2. 90/180 Category

To demonstrate a serious injury under the 90/180 category, a plaintiff must "submit competent medical evidence to support her claim that she was unable to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the accident, as a result of the subject accident," Escoto v. United States, --- F. Supp.2d ----, 2012 WL 847659, at *14 (E.D.N.Y. Mar. 13, 2012) (citing, inter alia, Kearse v. N.Y.C. Transit Auth., 16 A.D.3d 45, 52, 789 N.Y.S.2d 281, 287 (2d Dep't 2005); Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133, 136 (2d Dep't 2000)). To sustain a claim in this category, "plaintiff must prove that she was 'curtailed from performing [her] usual activities to a great extent rather than some slight curtailment.'" Gualtieri, 283 F. Supp.2d at 924-25 (alteration in original) (quoting Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 573).

A "plaintiff's allegations that her injuries [fall] within the 90/180 category must be substantiated by objective medical proof[.]" Escoto, 2012 WL 847659, at *14; accord Gualitieri, 283 F. Supp.2d at 925. Self-serving statements by a plaintiff are insufficient to establish a serious injury under the 90/180 category. See Gualitieri, 283 F. Supp.2d at 925.

II. Application

Defendant presses two arguments to support its claim that plaintiff does not meet the "serious injury" requirement. First, defendant argues that any injuries allegedly suffered by plaintiff were not caused by the December 12, 2008 accident. Second, defendant argues that, in any event, the injuries suffered by plaintiff do not constitute a "serious injury" pursuant to New York Insurance Law § 5102(d).

A. Causation

Defendant has presented a prima facie case that plaintiff's injuries were not caused by the December 12, 2008 accident. Defendant's expert, Dr. Kiernan, concluded that plaintiff was "magnifying her symptoms" and that her spinal injuries were the result of a chronic and long-lasting degenerative disc disease, "which was not caused by the motor vehicle accident of December 12, 2008." (Branagan Decl. Ex. O, at GKier0008; Kiernan Decl. ¶ 24). Dr. Kiernan explained that plaintiff's earlier accident resulted in a cervical sprain/strain, lumbosacral sprain/strain, cervical radiculopathy,³⁵ and myofascial pain (see Branagan Decl. Ex. O, at GKier008; Kiernan Decl. ¶ 24), and concluded that these injuries led to the degenerative disc disorder that caused plaintiff's present injuries. In reaching this conclusion, Dr. Kiernan examined plaintiff's medical records, including her records following the earlier accident, and performed a physical examination. (Branagan Decl. Ex. O, at GKier000 7; Kiernan Decl. ¶¶ 2, 11, 21, 23). Dr. Kiernan's medical report is sufficient evidence to shift the burden to plaintiff to produce credible admissible evidence creating a material issue of fact regarding whether the December 12, 2008 accident was the proximate cause of her injury. See, e.g., Franchini v. Palmieri, 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 232-33 (2003); Diaz v. Anasco, 38 A.D.3d 295, 296, 831 N.Y.S.2d 398, 399 (1st Dep't 2007).

35 Radiculopathy is "[a] disease of the nerve roots." Dorland's, supra note 2, at 1511.

Plaintiff has presented sufficient admissible evidence to raise a triable question of material fact as to whether she suffered a serious injury as a result of the December 12, 2008 accident. Although defendant's expert maintains that plaintiff's injuries were not caused by the December 12, 2008 accident, she has provided contrary admissible evidence that casts this issue into question. Specifically, her treating physician, Dr. Hausknecht, testified that, in his professional opinion, plaintiff's current injuries were caused by the December 12, 2008 accident. (See Hausknecht Dep. at 103-06). He explained that to attribute plaintiff's injuries to another cause "would be supposing a tremendous coincidence." (See id. at 104:6-7). He continued:

Prior to the accident of [December 12, 2008] [plaintiff] wasn't having any complaints of pain or numbness or weakness, she wasn't treating with any doctors for neck or back problems, she wasn't missing any work because of neck or back problems. Following the impact on [December 12, 2008] she started experiencing pain right away, the hospital staff identified abnormal acute traumatic findings consistent with neck and back injuries. She had CAT scans, MRIs done that didn't reveal any significant underlying degenerative process or preexisting condition, the findings were pretty significant in terms of showing acute disc herniations with cord impingement. She required intravenous morphine [and] steroids, she was admitted to a hospital. These are all pretty strong indicators to me this was an acute traumatic injury consistent with the 12/12/08 accident and not related to some previously asymptomatic condition that could incidentally become activated at the exact time of this accident.

(Id. at 105:4-106:3).

Dr. Hausknecht's explanation of his conclusion that plaintiff's injuries were caused by the December 12, 2008 accident is sufficient to raise a genuine issue as to the cause of her injury. He did not simply offer a conclusory statement of causality; rather, he described in detail the basis for his opinion. That explanation leaves for the trier of fact the question of whether plaintiff's current disability is attributable, in whole or in part, to the 2008 accident. See, e.g., Perl v. Meher, 18 N.Y.3d 208, 218-19, 936 N.Y.S.2d 655, 659-60 (2011) (treating physician's opinion that injuries were causally related to accident in issue was sufficient to create issue of fact regarding whether the accident or a pre-existing condition caused plaintiff's injuries); cf., e.g., Gay, 2011 WL 2015528, at *6 ("[The plaintiff's expert's] conclusory statement that [he] 'exhibits evidence of causally related permanent partial disability as a result of [his accident]' absent any explanation of the basis for this conclusion is insufficient to raise a triable issue of fact as to whether a causal link exists." (internal quotation marks omitted and citations omitted)).

Defendant disputes this conclusion. Defendant argues that Dr. Hausknecht's failure to adequately rebut defense expert Dr. Kiernan's finding that plaintiff's condition is degenerative, and to consider her previous accident as a possible cause of her injuries, precludes the use of his medical opinion as a basis for a finding that plaintiff has raised an issue of fact. This argument is unpersuasive.

In the medical opinion of defendant's expert, plaintiff's condition is degenerative (see Kiernan Supp. Decl. ¶¶ 12-14), and not a result of the 2008 accident. (See Def.'s Reply 5-6 (citing Kiernan Decl. Ex. 1, at 7-8) (explaining Dr. Kiernan's expert opinion that plaintiff's condition is degenerative)). Dr. Hausknecht disputes this finding in his deposition testimony. He testified that the results of plaintiff's CAT scans and MRIs taken immediately following the accident did not demonstrate any "significant underlying degenerative process or preexisting condition," but instead reflected "an acute traumatic injury consistent with the 12/12/08 accident and not . . . some previously asymptomatic condition that could incidentally become activated at the exact time" of her accident. (See Hausknecht Dep. 105-106:3). Thus, Dr. Hausknecht did not, as defendant argues, "merely [take] plaintiff's word" that she had recovered from the injuries sustained in the prior accident. (See Reply Mem. of Law in Further Supp. of Def.'s Mot. for Summ. J. ("Def.'s Reply") 6 (quoting Gentilella v. Board of Educ. of Wantagh Union Free School Dist., 60 A.D.3d 629, 630, 875 N.Y.S.2d 128, 129-30 (2009)); see also Def.'s Response 5 (citing same)). Instead, he confirmed plaintiff's representations that she had been asymptomatic based on objective medial tests performed soon after the accident occurred.³⁶ Thus, Dr. Hausknecht successfully addressed Dr. Kiernan's opinion that plaintiff's condition is degenerative.³⁷

36 Although Dr. Hausknecht did not review plaintiff's medical records from her prior accident, the record reflects that plaintiff's treatment for the 1996 accident ended in 1999. While Dr. Kiernan stated his belief that plaintiff's neck and back pain related to her 1996 accident had persisted until at least 1999, we note that almost a decade had passed between her last available medical records related to the 1996 accident -- and therefore presumably her last medical treatment related to that accident -- and her involvement in the 2008 accident. (See Branagan Decl. Ex. B; Kiernan Decl. Ex. 1, at 7). We find that it was unnecessary for Dr. Hausknecht to review those records in light of his knowledge of plaintiff's prior accident (see, e.g., id. at Ex. G, at GHaus0013 & P00006 (noting plaintiff's involvement in prior accident, and that she reported being asymptomatic prior to her 2008 accident); Hausknecht Dep. 100:17-101:17 (stating that he had inquired about plaintiff's previous accident, and that to his recollection, she had primarily sustained leg injuries in that accident)), his review of her current medical tests, and his finding that those tests did not reflect a preexisting condition. Cf. Vidor v. Davila, 37 A.D.3d 826, 826-27, 830 N.Y.S.2d 772, 733 (2d Dep't 2007) (plaintiff failed to raise issue of fact where the only basis for treating physician's conclusion that plaintiff's injuries were caused by the accident at issue, and not by prior accident, was the physician's reliance on plaintiff's recounting of her medical history); Penaloza v. Chavez, 48 A.D.3d 654, 655, 852 N.Y.S.2d 315, 316 (2d Dep't 2008) (same); Moore v. Sarwar, 29 A.D.3d 752, 816 N.Y.S.2d 503 (2d Dep't 2006) (plaintiff failed to raise a triable issue of fact regarding causation where his chiropractor had concluded that his injuries resulted from the accident at issue, but failed to acknowledge or account for a prior accident involving the plaintiff that had resulted in a back injury and for which the plaintiff had undergone physical therapy (emphasis added)); Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 745, 829 N.Y.S.2d 169, 170-71 (2d Dep't 2007) (treating chiropractor's conclusion that plaintiff's injuries and limitations in the range of motion of her spine were caused by the subject accident was speculative in light of his failure to address or even acknowledge a prior accident in which she had injured her neck and back).

37 Defendant cites Mesimeris v. United States, 2006 WL 148911 (E.D.N.Y. Jan. 17, 2006), in support of its assertion that plaintiff's supplemental submission does not adequately rebut Dr. Kiernan's expert opinion that plaintiff's condition is degenerative. Essentially, the thrust of the argument is that plaintiff has not adequately demonstrated causation because, defendant asserts, indications of degenerative disease in several of plaintiff's MRIs preclude a finding of serious injury. (See Def.'s Mem. of Law in Response to Pl.'s Fed. R. Civ. P. 56(d) Supplement and in Further Supp. of Def.'s Mot. for Summ. J. ("Def.'s Response") 4). However, the Mesimeris decision was rendered after a bench trial -- thus the evidence presented in that case was sufficient to present issues of fact regarding whether the plaintiff had suffered a serious injury. See Mesimeris, 2006 WL 148911, at *1. In any event, the Mesimeris court dismissed plaintiff's claims following a three-day bench trial because the record reflected that plaintiff's neck and back injuries were degenerative and not caused by the accident at issue. Id. at *9. Evidence of degeneration was reflected in multiple post-accident MRIs that had revealed spondylosis -- a medical term for degenerative disc disease -- and osteophytes, which typically form over many years as the result of degeneration. Id. at *8-9. Moreover, that plaintiff's surgeon had concluded that cervical spondylosis was the most significant contributing factor to his pain. Id. at *4. While a second MRI revealed a C6-7 disc herniation, an expert opined that that finding was consistent with plaintiff's age. Id. at *3. Mesimeris had undergone corrective surgery, which had initially relieved most of his symptoms, but after that he had gradually deteriorated. Id. at *5. His expert testified at trial that his disc herniation was caused by the accident, but the court found it more likely that the osteophytes had caused the herniation because plaintiff's expert had been under the mistaken impression that the impact of the accident was more severe than plaintiff had testified to at trial, a fact that plaintiff's expert admitted would have influenced his medical opinion regarding causation. Id. at *6-9. This case can be distinguished from Mesimeris, where repeated medical testing objectively demonstrated that degeneration had played a significant role in plaintiff's persisting pain. Ms. Rivera's evidentiary proffer, in contrast, creates an issue of fact regarding whether her condition is degenerative or was caused by the December 2008 accident. In the present case, the CT scan taken on the date of the accident demonstrated a large central disc bulge with spinal canal stenosis, and flattening of the ventral aspect of the thecal sac with questionable cord compression; the examining doctor at St. Vincent's explicitly noted that "given the lack of degenerative changes . . . this finding may be acute." (Branagan Decl. Ex, E, at GSt.Vin0016). Although defendant asserts that the results of an MRI taken the day after the accident "confirms" that plaintiff's condition was degenerative (see Def.'s Response 4), that is plainly false. It reflects a finding of disc bulging and herniation at C4-5 and C5-6. (See Branagan Decl. Ex. E, at GSt.Vin0049-50). It says nothing of how the herniations were caused, whether by acute trauma or degeneration. Unsurprisingly, Dr. Hausknecht and Dr. Kiernan have differing interpretations of the test results. Dr. Kiernan acknowledges that plaintiff's testing reflects disc herniations, but he finds that the MRI taken at St. Vincent's and the accompanying discharge notes indicate a non-traumatic condition. (Def.'s Response 6 (citing Kiernan Decl. ¶¶ 4, 15, 20, 24; Kiernan Supp. Decl. ¶¶ 5, 6, 11)). In contrast, Dr. Hausknecht opined that, based upon the same objective medical testing, plaintiff's injury was traumatic and not degenerative. (E.g., Hausknecht Dep. 83:3-4 (plaintiff's post-accident CAT Scan revealed "no osteophytes or degenerative changes"); 105:10-106:3 (plaintiff's CAT Scan and MRI following the accident "didn't reveal any significant underlying degenerative process or preexisting condition, the findings were pretty significant in terms of showing acute disc herniations with cord impingement")). Dr. Hausknecht also explained that an osteophyte formation that was revealed in a 2010 MRI, but was not previously indicated, had formed as a result of an adjacent disc herniation, not simply as a result of the aging process. (See Hausknecht Dep. 82:8-18). Thus, unlike in Mesimeris, plaintiff's evidentiary proffer sufficiently raises an issue of fact regarding whether her condition is degenerative or was caused by the December 2008 accident.

B. Serious Injury

Although plaintiff has sufficiently rebutted defendant's assertion that her injuries were not caused by the December 12, 2008 accident, defendant has also established a prima facie case that plaintiff's injuries do not qualify as a "serious injury" under New York Insurance Law.

1. The 90/180 Category

Defendant has presented a prima facie case that plaintiff does not meet the standard for serious injury under the 90/180 category. Defendant produced tax documents indicating that, subsequent to 2008, plaintiff earned income at the same level as she had prior to the accident, calling into question her testimony that she worked only one day a month following the accident. (See Aflac Payment Records, attached as Ex. S to Branagan Decl., at GAFLAC0099). Defendant also presented documents indicating that plaintiff visited her gym, Planet Fitness, more often in the months after the accident than before the accident. (See Planet Fitness Records, attached as Ex. R to Branagan Decl., at GPlanFit0009). Plaintiff also testified that she continues to perform errands (see, e.g., Rivera Dep. 24:18-21, 25:8-17), and that she went on a Caribbean vacation approximately six months after the accident. (Id. at 141:8-12). Moreover, Dr. Silverman performed a neurological examination of plaintiff five months after the accident and found that there was no objective evidence that plaintiff had suffered a neurological injury, that her "mechanical examination" was "normal," and that any injury resulting from the 2 008 accident had "resolved" such that plaintiff could return to "normal daily living activities" without household help. (See Branagan Decl. Ex. I, at GSilver0003-04).

These documents and testimony call into question plaintiff's assertion that she was unable to engage in daily-living activities after the accident. Thus, the evidence presented by defendant constitutes a prima facie case that plaintiff did not suffer a "serious injury" under the 90/180 prong. See Vializ v. Anoah, 2012 WL 833380, at *1 (1st Dep't Mar. 14, 2012) (affirming finding that "defendants [had] met their threshold burden of demonstrating prima facie the absence of a 'serious injury' . . . by submitting, inter alia, the affirmed reports of a neurologist, who examined plaintiff and found him neurologically normal").

The burden therefore shifts to plaintiff to present evidence that she suffered a statutorily serious injury under the 90/180 prong. Plaintiff not only must show that her "usual activities were curtailed 'to a great extent rather than some slight curtailment,'" but also must "submit medical evidence based on objective medical findings of a medically determined injury or impairment of a nonpermanent nature which caused the alleged limitations" on her daily activities. Dabiere v. Yager, 297 A.D.2d 831, 832, 748 N.Y.S.2d 38, 39 (3d Dep't 2002) (quoting Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 573) (citing Monk v. Dupuis, 287 A.D.2d 187, 191, 734 N.Y.S.2d 684, 689 (3d Dep't 2001)).

Plaintiff's memorandum of law in opposition to defendant's motion does not proffer any specific arguments in support of her contention that she has sustained a serious inj ury under this provision. (See Pl.'s Opp'n 9-13).³⁸ This is unsurprising as the record contains hardly any evidence that would support such a finding.

38 Instead, plaintiff argues only that defendant has failed to meet its prima facie burden in proving the absence of 90/180 serious injury. (See Pl.'s Opp'n 5-8).

Plaintiff offers only (1) self-serving statements that she missed work for an unspecified amount of time, and (2) her treating doctor's statements that injuries of her type could restrict one's daily-living activities statements unaccompanied by any specific findings regarding any actual restrictions on plaintiff's activities. This proffer is insufficient to create a triable issue of fact regarding whether plaintiff's customary activities were limited to a great extent for ninety out of the 180 days following her accident.

Plaintiff testified that she was out of work following the accident, but that she does not recall for how long. (Rivera Dep. 83:2-5). She also testified that immediately after the accident, she worked "maybe one day a month" for the "first few" months. (Id. at 83:21-23). No other evidence corroborates plaintiff's claims of inability to work.³⁹ Plaintiff's claim that she was out of work, unsubstantiated by further evidence, is insufficient to create an issue of fact. See, e.g., Morris v. Ilya Cab Corp., 61 A.D.3d 434, 435, 876 N.Y.S.2d 61, 62 (1st Dep't 2009) (citing cases) (plaintiff could not create fact issue with respect to his 90/180 claim where the only evidence that he had quit his job as a result of the accident at issue was his own testimony).

39 It is unclear exactly when she returned to work full time.

The record also contains medical records from several of plaintiff's doctor's visits in the six months following the accident. However, these records also do not suffice to create a question of fact with regard to plaintiff's alleged serious injury under the 90/180 category.

On December 23, 2008, eleven days after the accident, plaintiff reported to Dr. Hausknecht that she was having "problems with activities of daily living," and noted difficulty sitting, standing, and laying down. (Branagan Decl. Ex. 6, at GHaus0013). Based on her pain, she also reported that she had been "restricting her activities." (Id.). Plaintiff also noted that she had been "unable to return to the office" but had "[tried] to make some [sales] phone calls from home." (Id. at GHaus0014).

On that date Dr. Hausknecht found that plaintiff had mild weaknesses in her right and left shoulder abductors, her grip strength in the left hand, both hip flexors, and the right ankle dorsiflexor.⁴⁰ He also found some tenderness in the right temple, jaw, and back, and associated spasm. Plaintiff also had some limitations in movement related to lateral flexion and rotation and forward flexion and extension. (Id. at GHaus0015).

40 Muscle strength is rated on a scale of zero to five, see Merck, supra note 6, at 1751, where five indicates normal strength, three indicates the ability to "just overcome gravity," and zero is paralysis. (See Hausknecht Dep. 19-20). All of the muscles mentioned measured at strength of 4+ or 5-. (Branagan Dep. Ex. G, at GHaus0014).

At this visit, plaintiff also performed a forward-flexion test, which is used to test a patient's ability to bend forward. (Hausknecht Dep. 33:19-21). She demonstrated a twelve-percent loss in her lumber spine. (See id. at 35; Branagan Decl. Ex. G, at GHaus0015). Dr. Hausknecht testified at his deposition that this finding was "clinically significant" because the forward-bending motion is "probably the most important movement of the spine and of the lower spine. It is something people need to do every day when they are getting dressed, when they are doing household chores, taking a shower, emptying the dishwasher, et cetrea." (Hausknecht Dep. at 35:20-36:2). However, he made no representation that plaintiff was ever unable to carry out those activities, or any others, following her accident.

Dr. Hausknecht also determined at that visit that plaintiff was "totally disabled" which, in his opinion, meant that she was "unable to engage in any form of gainful employment." (Id. at 39:2-9).⁴¹ He then clarified at his deposition that he had concluded that she was totally disabled because he did not "feel [that] she was capable of a daily schedule commuting back and forth to work." (Id. at 39:23-40:6). He therefore had "advised her to restrict her activities." (Branagan Decl. Ex. G, at GHaus0016). However, when Dr. Hausknecht was asked to elaborate on his conclusions regarding plaintiff's functional capacity at the time of that visit, he stated that she was able to perform functional activity, was "independent in her activities of daily living," and was "taking care of herself." (Id. at 39:23-40:6).

41 He stated that he based his disability opinion on plaintiff's "clinical presentation, symptoms, and the "findings on examination." (Hausknecht Dep. at 39:11-12). Those clinical findings included her complaints of pain, numbness, weakness, and headaches, the physical examination results that demonstrated her motor weakness, tenderness, muscle spasm, and restricted mobility, and the indications that she potentially had a cervical myelopathy or compression of the cord in her neck. (Id. at 39:15-21).

On February 3, 2009 -- approximately two months after the accident -- plaintiff reported to Dr. Hausknecht that she still had "problems with daily living," including difficulty sitting, standing, bending, lifting, carrying, and sleeping. (Branagan Decl. Ex. G, at Ghaus0011). Dr. Hausknecht admitted that on that visit he did not independently test plaintiff's ability to perform those activities, or otherwise perform a functional examination. (Hausknecht Dep. 50:22-51:11). Plaintiff again reported that she had been "unable to work." (Branagan Decl. Ex. G, at GHaus0012). Dr. Hausknecht performed a range-of-motion test and noted 30% loss of lateral flexion and 12% loss of rotation in the cervical spine on both sides. (Id. at GHaus0011). The doctor again determined at that visit that plaintiff was "totally disabled," and he "advised her to restrict her activities." (Id. at GHaus0012).⁴²

42 He based his disability determination on her "complaint[s]," the MRI findings which revealed disc herniation at C4-5 with cord compression and disc herniation at C5-6, bilateral C6 nerve root impingement, and disc bulge at L5-S1 (see id. at GHaus0011), and her subjective assessment of her "[pain and] difficulty sitting, standing, bending, lifting and carrying." (Hausknecht Dep. at 50:5-21).

As of April 9, 2009, approximately four months following the accident, plaintiff again saw Dr. Hausknecht, and reported that she had returned to work "on a restricted basis," meaning that "she wasn't doing all of the things she would normally do." (Id. at GHaus0009; Hausknecht Dep. 54:9-14). Dr. Hausknecht was unsure whether plaintiff had returned to the office as of that date. (Hausknecht Dep. 54:23-55:2). With respect to limitations on her daily activities, plaintiff reported difficulty and pain when sitting, bending, and lifting. (Id. at 55:3-11). Dr. Hausknecht determined that plaintiff was "partially disabled" -- meaning that she could "work part-time with restrictions" such as avoiding bending and excessive carrying and lifting⁴³ -- and that she "should restrict her activities." (Id. at 66:18-67:4).

43 His opinions regarding her functional capacity are not documented in his medical notes from that visit, but were instead part of the "standard" discussion that he had with her at that meeting. (Hausknecht Dep. at 67:5-8).

While Dr. Hausknecht did repeatedly opine that plaintiff was "totally disabled" in the months following her accident, he did not explicitly offer any evidence regarding any actual limitations on her customary daily activities during that period. In addition, he testified that she was living independently and taking care of herself eleven days after the accident. (Id. at 39:23-40:6).

Although Dr. Hausknecht identified at his deposition a number of day-to-day limitations that one could potentially a result of plaintiff's injuries, such as her restricted range of motion, there is no evidence -- other than plaintiff's self-serving statements -- regarding her actual daily limitations, if any, in the six months following her accident. Plaintiff claimed that she had difficulty sitting, standing, and lying down during that time period, but such statements are insufficient to demonstrate that she experienced considerable limitation in her daily living. See Gorden v. Tibulcio, 50 A.D.3d 460, 463, 855 N.Y.S.2d 515, 517 (1st Dep't 2008) (plaintiff's doctors' statements that he should not perform heavy work until told to do so, that he avoid any "strenuous activities as lifting, carrying, pushing or pulling heavy weights," and that he was "somewhat limited in activities of daily living" insufficient to raise fact issue on 90/180 claim and did not support plaintiff's claim that his confinement to bed for 90 days and home for six months was medically necessary); cf. Blake v. Portexit Corp., 69 A.D.3d 426, 426-27, 893 N.Y.S.2d 28, 29-30 (1st Dep't 2010) (plaintiff failed to raise issue of fact even though he missed 90 days of work and he could not play sports with his children and had difficulty walking, going up stairs, and getting into cars for six months following the accident at issue, because his statements were unsupported by medical evidence and because the listed activities did not constitute substantially all of his activities); Gibbs v. Hee Hong, 63 A.D.3d 559, 560, 881 N.Y.S.2d 415, 417 (1st Dep't 2009) (plaintiff failed to raise material fact issue on summary judgment where she stated that she could not "run, go upstairs, or stand for very long"; such loss did not constitute the loss of "substantially all" of her usual activities).

Finally, Dr. Hausknecht's opinions regarding plaintiff's "total" disability are too vague and generalized to support a finding that she was substantially restricted in her daily activities. A number of New York courts have found a plaintiff's treating physician's statement that the plaintiff is "totally disabled," based on which the physician advises the patient to restrict his or her activities, is too general to raise an issue of fact on a 90/180 claim on summary judgment. See, e.g., Morris, 61 A.D.3d at 435, 876 N.Y.S.2d at 62; Valentin, 59 A.D.3d at 186-87, 873 N.Y.S.2d at 540 (finding that Dr. Hausknecht's statements that plaintiff was "totally disabled" and that he had "advised him to restrict his activities" were too general to raise fact issue that plaintiff was unable to perform his usual and customary activities uring the required time period).

Even the results of plaintiff's MRI, taken on January 26, 2009, do not suffice to support her 80/190 claim. Dr. Hausknecht found that the MRI demonstrated disc herniation at C4-5 with cord compression, disc herniation at C5-6 with bilateral C6 root impingement, and disc bulge at L5-S1. (Id. at GHaus0011). Such injuries cannot suffice to demonstrate a serious injury under the 90/180 prong if the treating doctor does not specify how the medical condition affects plaintiff's daily living, which Dr. Hausknecht failed to do. See Cekic v. Zapata, 2009 WL 1174805, at *6 (Sup. Ct. N.Y. Cnty. Apr. 24, 2009) (MRI results demonstrating an "L4-L5 diffuse bulging posterior [disc]" and an "L5-S1 left posterior disc herniation" insufficient to sustain 90/180 day claim because doctor failed to specify plaintiff's medical condition and his resulting limitations during the 90/180-day period).

Based on the foregoing, we grant defendant's motion for summary judgment with respect to plaintiff's claim that she suffered a "serious injury" under the 90/180 provision of New York Insurance Law § 5102(d). Cf. Martinez v. Goldmag Hacking Corp., 95 A.D.3d 682, 683, 944 N.Y.S.2d 555, 556 (1st Dep't 2012) (plaintiff successfully raised triable issue of fact on her 90/180-day claim "by submitting her orthopedic surgeon's determination, made during the relevant period," which stated "that she was not able to work, was totally disabled, and required arthroscopic surgery to repair her knee, and her testimony that she was confined to her home for eight months after the accident and had only recently resumed her customary daily activities).

2. Permanent Consequential Limitation or Significant Limitation

i. Defendant's Prima Facie Case

Defendant has also presented a prima facie case that plaintiff has not suffered a permanent consequential limitation or a significant limitation. Defendant's expert concluded, after examining plaintiff and reviewing her medical records, that she demonstrated "no objective signs of neurological injury . . . ." (See Branagan Decl. Ex. O, at Gkier0008; Kiernan Decl. ¶ 25). Dr. Kiernan further noted that plaintiff should resume work and normal daily living activities. (See Branagan Decl. Ex. O, at Gkier0008; Kiernan Decl. ¶ 25).

Other medical evaluations support Dr. Kiernan's findings. For example, Dr. Silverman found that plaintiff's "neurologic exam" [was] "essentially normal." (See id. Ex. I, at GSilver0003). He noted that there was "a grossly nonanatomic report of sensory loss by [plaintiff] involving the entire right arm and right leg. Mechanical examination is also normal. There was no palpable spasm in the cervical or lumbar spine." (Id.). Furthermore, Dr. O'Leary testified that plaintiff's C4-5 disc herniation has decreased in size since the accident, and he characterized plaintiff as having "pretty good" range of motion in the affected areas. (See Branagan Decl. Ex. P, at 17:22-25, 25:2-21, 43:4-7). In addition, on February 2, 2012, Dr. Matusz saw plaintiff for a post-operative visit, at which he reported that her "presurgical symptoms [had] resolved completely." (See Decl. in Opp'n to Def.'s Mot. Ex, A, Feb. 24, 2012).

It is well established that to meet the "serious injury" standard for a permanent consequential limitation or a significant limitation a plaintiff must submit objective evidence of the limitation. See DeJesus, 2003 WL 21305358, at *3 ("On a motion for summary judgment, a defendant can establish that a plaintiff's injuries are not serious within the meaning of [New York Insurance Law § 5102(d)] by submitting affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiff's claim.") (citing Grossman, 707 N.Y.S.2d at 237, 268 A.D.2d at 83-84). By presenting medical reports indicating that plaintiff's injury is not significant or lasting, defendant has established a prima facie case.

ii. Plaintiff's Rebuttal

Although it is well established that a plaintiff's complaints of pain alone are insufficient to establish a serious injury, a plaintiff's claim can survive summary judgment as long as objective medical evidence corroborates her complaints of pain. See DeJesus, 2003 WL 21305358, at *2. In addition to straight-leg tests, physician-observed spasms, and MRIs, "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury." Yong Qin Luo, 625 F.3d at 777. Plaintiff has presented sufficient corroborative evidence of her claimed serious injury to survive summary judgment under both the permanent-consequential-limitation and the significant-limitation tests.

a. Significant Limitation

Plaintiff asserts that she has "sustained a significant limitation of use of her spinal system" based on her persisting pain, and restricted "function, flexibility and use of the spine." (Pl.'s Opp'n 11). The reports of plaintiff's treating doctor, Dr. Hausknecht, reflect objective testing that raises an issue of fact as to whether plaintiff suffered a significant limitation.

On December 28, 2008 and as recently as January 20, 2011, Dr. Hausknecht used an arthrodial protractor and goniometer to objectively measure plaintiff's range of motion. (See Branagan Decl. Ex. G, at GHaus0014-15, P00008-09). The results demonstrate that on those dates plaintiff did not have full range of motion in either her cervical spine or her lumbar spine. (See Branagan Decl. Ex. G, at GHaus0015, P00008; Hausknecht Decl. 35-37 (categorizing plaintiff's loss of range of motion as "clinically significant")). In certain areas, her range of motion was consistently limited by more than twenty percent. (See, e.g., Branagan Decl. Ex. G, at GHaus0011 (30% loss of lateral flexion in the cervical spine on both sides on February 3, 2009), GHaus0009 (30% loss of lateral flexion and 24% loss of rotation in the cervical spine on both sides, with 22% of loss of forward flexion in the lumbar spine on April 9, 2009), GHausP00008 (40% loss of cervical left lateral flexion, 30% loss of cervical right lateral flexion, and 22% loss of forward flexion in the lumbar spine on January 20, 2011)). Plaintiff also had a positive bilateral Spurling Maneuver⁴⁴ on December 28, 2008, February 3, 2009, and January 20, 2011, and a positive left-side Spurling Maneuver on April 9, 2009. (See Branagan Decl. Ex. G, at GHaus0015, GHaus0011, P00007).

44 A Spurling Maneuver is a clinical test that is performed by bending a patient's head backwards and sideways while exerting downward pressure on the head. (Hausknecht Dep. 28:25-29:5). A positive Spurling Maneuver occurs when the patient indicates that performing the maneuver causes pain that radiates to her extremities, and indicates an underlying injury to the neck, such as a slipped disc or pinched nerve. (Id. at 29:5-24).

MRIs taken in the years following the accident also reflect multiple back injuries, including disc herniation, cord impingement, and disc bulge. (See id. at GHaus0017-GHaus0018 (January 26, 2009 MRI), P00008 (description of March 5, 2010 MRI)). In addition, plaintiff underwent a nerve conduction velocity ("NCV") and electromyography ("EMG") study to objectively evaluate her peripheral nerve and muscular function on February 3, 2009 and again on January 20, 2011, (See Pl.'s Opp'n Ex. A, at NCV/EMG Report; Hauskecht Decl. at 97:9-12). The results of the first test⁴⁵ reflected a left C5-6 radiculopathy, and the second reflected evidence of bilateral C5-6 radiculopathy, with progression on plaintiff's right side as compared to the prior study. (See Pl.'s Opp'n Ex. A, at NCV/EMG Report; Hausknecht Decl. at 97:16-23). Since Dr. Hausknecht's assessment of plaintiff's MRI and other testing was accompanied by an objective comparison of the affected area with that of a healthy patient (e.g., Branagan Decl. Ex. G, at GHaus0011 (describing plaintiff's January 2009 MRI and providing contemporaneous range-of-motion restrictions -- plaintiff demonstrated 30% loss of lateral flexion and 12% loss of rotation in the cervical spine, and 11% loss of forward flexion in the lumbar spine)), the proffered medical records suffice to raise an issue of fact regarding plaintiff's contention that she suffers from a significant limitation of her spine. See Toure, 98 N.Y.2d at 353, 774 N. E. 2d at 1201-02; accord Bent, 15 A.D.3d at 49, 788 N.Y.S.2d at 59; Peterson v. Cellery, 93 A.D.3d 911, 914, 940 N.Y.S.2d 194, 197-98 (3d Dep't 2012); Eng v. New Main Line Trading Corp., 249 A.D.2d 359, 359, 670 N.Y.S.2d 800, 800-01 (2d Dep't 1998) (affirming denial of summary judgment; sworn affidavits of medical examinations conducted three years after the occurrence of the accident raised triable issue regarding whether plaintiffs had suffered "significant limitations" because the affidavits specified the degree of restriction in the range of motion of the cervical and lumbar spines of one plaintiff, and the cervical spine of the other).

45 The results of the first test do not appear in the record. Dr. Hausknecht explained that this test showed a left C5-C6 radiculopathy. (Hausknecht Dep. at 97:17-20).

Other medical records also support an inference that plaintiff has suffered more than a mild or slight limitation of use of her back. On January 20, 2011, Dr. Hausknecht recommended that plaintiff undergo cervical spine surgery, "as she has really exhausted all of her other options." (Branagan Decl. Ex. G, at P00009). Dr. Merola concurred in this opinion on January 12, 2011, stating that the effects of plaintiff's injuries are "permanent" and that the primary purpose of surgical intervention would be to prevent further neurological deterioration, as it would not affect her existing nerve damage. (Pl.'s Opp'n Ex. B, at 2).⁴⁶ Plaintiff underwent surgery on January 25, 2012, after which Dr. Hausknecht noted that her post-operation testing revealed cervical derangement⁴⁷ with bilateral C5-6 radiculopathy and lumbosacral derangement with L5-S1 disc bulge (Hausknecht Letter at 2), and concluded that plaintiff remained completely disabled. (Id. at 3).

46 This report of Dr. Merola is sworn under the penalty of perjury.

47 "A derangement of the intervertebral disc may lead to a cervical radiculopathy, a condition that can negatively affect mental and physical function." Ronald Schenk, et al., Inclusion of Mechanical Diagnosis and Therapy (MDT) in the Management of Cervical Radiculopathy: A Case Report, 16 J. of Manual & Manipulative Therapy El (2008). --------

All of this evidence is sufficient to raise a triable issue concerning whether plaintiff suffers from a significant limitation in her "spinal system."

b. Permanent Consequential Limitation

Plaintiff asserts that she has raised a triable issue of fact regarding whether she suffers from a permanent consequential limitation, specifically based on her "pain and limited motion." (Pl.'s Opp'n 10). This category does not require a total loss of use of the affected organ or member; New York courts have held that permanency can refer to pain that has a limiting effect on plaintiff's abilities. See, e.g., Ottavio v. Moore, 141 A.D.2d 806, 807, 529 N.Y.S.2d 876, 877 (2d Dep't 1988) (citing cases) ("We have also held that permanency of an injury could refer to persistent pain, or operation of the organ, member or system in some limited way, or only with pain."); Dwyer v. Tracey, 105 A.D.2d 476, 477, 480 N.Y.S.2d 781, 783 (3d Dep't 1984) (citation omitted)

("permanent pain, even of an intermittent character, may form the basis of a 'serious injury'"). Furthermore, the permanent injury need not also be "significant" to rise to the level of a statutorily "serious injury." Miller v. Miller, 100 A.D.2d at 578, 473 N.Y.S.2d at 514. However, subjective complaints of pain that are unsupported by credible medical evidence will not suffice to raise a triable issue. Dwyer, 105 A.D.2d at 477, 480 N.Y.S.2d at 783.

As discussed, MRIs taken in the years following the accident reflect multiple back injuries, including disc herniation and cord impingement. (E.g., Branagan Decl. Ex. G, at GHaus0017-GHaus0018 (January 26, 2009 MRI), P00008 (description of March 5, 2010 MRI)). Plaintiff also repeatedly demonstrated limited range of motion in her cervical and lumbar spine. (See, e.g., Branagan Decl. Ex. G, at GHaus0009, GHaus0011).

Plaintiff testified at her deposition that her pain interferes with many of her customary activities. She says that "sitting for too long is uncomfortable," that some days she has "constant pain," and that "it hurts all day long, every day." (Rivera Dep. 24:12-25:5). With respect to her daily activities, she stated that she still runs her own errands, such as buying groceries, even though she experiences this pain, because she has "no choice;" she does not have anyone who can do the errands for her. (Id. at 25:3-17). She does not want to socialize anymore because she is "in pain or uncomfortable" (id. at 25:9-12), and therefore does not "really do much." (Id. at 24:11-14). She stopped participating in the physical hobbies she enjoyed prior to the accident, such as fishing, volleyball, exercise, and running. (Id. at 25:18-25, 28:5-16, 30:5-9). She also remained in physical therapy as of the date of her deposition. (Id. at 28:17-19). In addition, she has had to make modifications in her home for her comfort -- she only keeps food at arms' level in her pantry because it is difficult for her to reach the higher shelves. (Id. at 65:4-7). She also stated that she has a constant "tingling numbness" in both of her arms that runs from her elbows to her hands and that gets worse depending on what she is doing. (Id. at 112:9-114:16). She does not commute by train to work on certain days when her "pain is so bad." (Id. at 117:2-19).

Dr. Hausknecht also testified that plaintiff had persisting functional limitations because of her back injuries. Thus, he opined, she should not sit or stand for more than about a half an hour, should not walk for more than twenty to thirty minutes, should not lift, carry, push, or pull more than five pounds frequently and ten pounds on occasion, and should avoid squatting, kneeling, and crawling. (Hausknecht Dep. 93:17-94:7).

Plaintiff underwent palliative surgery on January 25, 2012. About a month and a half after her surgery, she reported a new form of "crushing" neck pain to Dr. Hausknecht. (Hausknecht Letter 1). That pain was "aggravated by any type of movement or activity such as washing her hair." (Id.). She also reported that "her lower back [had] been bothering her more." (Id.). During her examination, Dr. Hausknecht found "antalgic weakness of the upper extremities proximally," but no other impairments to her motor strength. (Id.). He also noted "paracervical tenderness" and "bilateral trapezius muscular spasm." (Id. at 2). Dr. Hausknecht described her post-operation diagnosis as cervical derangement with bilateral C5-6 radiculopathy and lumbosacral derangement with L5-S1 disc bulge (Id.). He concluded that plaintiff remained totally disabled. (Id. at 3).

Multiple doctors have opined that it is likely that plaintiff's pain will persist even in the wake of her surgery. Dr. Hausknecht testified that plaintiff's condition is permanent, and that surgery is "unlikely to be curative." (Hausknecht Dep. at 89:10-12). He did state, however, that it "would provide symptomatic relief." (Id. at 90:3-6). Dr. Merola concluded that the effects of plaintiff's injuries are "permanent" and that the primary purpose of surgical intervention would be to prevent further neurological deterioration, as it would not impact her existing nerve damage. (Pl.'s Opp'n Ex. B, at 2).

Based on the foregoing, we find that plaintiff's proffer raises a triable issue regarding whether she has suffered a permanent consequential limitation based on the frequent pain she experiences in her neck and back. See, e.g., Gonzalez v. Vasquez, 301 A.D.2d 438, 439, 754 N.Y.S.2d 7, 7-8 (1st Dep't 2003) (affirming denial of summary judgment for defendant where examining physician affirmed that, two years after the subject accident, plaintiff's neck and back pain correlated with quantified range-of-motion limitations found during physical examination and bulging and herniated discs described in MRI reports, and opined that plaintiff's symptoms were permanent); Ottavio, 141 A.D.2d at 807, 529 N.Y.S.2d at 877 (reversing trial court's grant of defendant's motion to set aside plaintiff's verdict; plaintiff gave unrefuted testimony that she felt pain upon completing certain movements and plaintiff's x-rays showed misalignments both in the cervical spine and in the lower back); see also Pichardo v. Chesley, 1994 WL 369281, at *3 (S.D.N.Y. July 12, 1994) (summary judgment for defendant denied; plaintiff raised triable issue regarding permanent consequential limitation where his doctor reported limited range of motion and concluded that plaintiff's injuries were permanent, and plaintiff testified that he was confined to bed for two to three months after the accident, that he experienced continual or recurring pain in his back and neck, that he was unable to perform various physical activities, including mopping, exercising, and working strenuously, and that he had been unable to return to work since the accident).

Defendant disputes this conclusion. It asserts that Dr. Hausknecht's conclusion that plaintiff has suffered a permanent limitation is insufficient to raise an issue of fact, particularly in light of examples in the record that demonstrate that plaintiff's impairment "is not permanent." (See Def.'s Reply 9-10). In support, defendant relies on Berroa v. United States, 2010 WL 532862, at *6 (S.D.N.Y. Feb. 5, 2010). In that case, the plaintiff proffered a declaration from Dr. Hausknecht in which he had opined, without analysis, that plaintiff had suffered a permanent consequential limitation as a result of the accident at issue. Id. The court found that his conclusory finding of permanency was insufficient to raise a triable issue of fact because plaintiff's medical records were "filled with examples" that demonstrated that his impairment was temporary. Id. The evidence to which the court referred was (1) a medical record from approximately four months following the accident, in which plaintiff indicated that he had "no pain" and that he had discontinued physical therapy, and (2) a gap in treatment, demonstrated by plaintiff's lapse in seeking further professional treatment until over a year following that visit. Id.

In the present case, plaintiff has had no such gap in treatment, has consistently reported pain in her back and neck, and has had recent surgery in an effort to alleviate her symptoms. (See, e.g., Branagan Decl. Exs. G, at P00009, K, L, N ("she has been two years in pain"); Hausknecht Letter). Although defendants cite various examples from the record that they assert support a finding that her impairments are temporary (see Def.'s Reply 10), these citations do not demonstrate an absence of a triable material issue.

Defendant invokes the following: MRIs that demonstrate that plaintiff's herniation is shrinking (see Def.'s Mem. 21); Dr. O'Leary's categorization of plaintiff as having a "full and complete" range of motion in her cervical spine on February 18, 2011 (see Branagan Decl. Ex. N, at GOLeary0006); Dr. Silverman's report on May 11, 2009 that plaintiff's cervical and lumbar sprain had resolved (see id. Ex. I, at GSilver0003); and Dr. Rosner's report that plaintiff had a good prognosis, with surgical intervention needed only if disc herniation and cord compression persisted, which, they assert, it did not. (See id. Ex. L, at GRos0013). These medical opinions cited by defendant are different from the objective facts on which the Berroa court relied in granting summary judgment. That the plaintiff in Berroa reported no pain within four months of the accident and went for fourteen months without treatment are objective facts that can be discerned from the record; they are not the basis of medical opinion. In contrast, the evidence that defendant cites in this case has been placed at genuine issue by plaintiff's treating doctor, Dr. Hausknecht. He found that she had significant measured range-of-motion limitations at all visits pre-surgery (see Branagan Decl. Ex. G), and determined that plaintiff's August 19, 2011 MRI demonstrated C4-5 disc protrusion with cord impingement, and that her January 20, 2012 MRI revealed persisting C3-4 and C4-5 disc herniation and C5-6 disc bulge, in addition to degenerative changes. (See Hausknecht Letter). Plaintiff's proffer is therefore sufficient to raise an issue of fact regarding the severity and potential permanence of her injury.

Defendant also argues that plaintiff cannot demonstrate a permanent or consequential limitation because Dr. Matusz concluded in his February 6, 2012 post-operative examination, two weeks after her surgery, that plaintiff's symptoms had resolved completely and that she was not taking any pain medication as of that date. (See Def.'s Response 8; Decl. in Opp'n to Def.'s Mot. Ex. A, Feb. 24, 2012). However, Dr. Hausknecht reached an opposite conclusion. He held a post-operative visit with plaintiff on March 8, 2012, at which she complained of neck pain (albeit pain that was different from that which she had previously experienced) and indicated that she was taking Percocet and Flexeril. He also intended to prescribe her Elavil to take at night.

In the cases that defendant cites in support of its argument, the plaintiff had confirmed the success of the prior surgery, see Baker v. Thorpe, 43 A.D.3d 535, 536-37, 840 N.Y.S.2d 834, 836-37, (2007) (affirming summary judgment for defendant where plaintiff confirmed at his deposition that he had full range of motion and no pain following successful carpal tunnel surgery); had undergone an objectively successful surgery based on evidence presented, see Lindauist v. Knowledge Sys. & Research, 295 A.D.2d 889, 889. 744 N.Y.S.2d 103, 103 (4th Dep't 2002) (evidence presented at trial demonstrated that plaintiff had no permanent or consequential injury when her back surgery was successful and she had not had treatment in close to four years prior to trial, no longer experienced pain from the herniated disc, and was able to resume normal activities); or had a remaining injury post-surgery that was so minor as to preclude a finding of serious injury. See Licygiewicz v. Stearns, 61 A.D.3d 1254, 1254-55, 876 N.Y.S.2d 782, 783-84 (3d Dep't 2009) (after plaintiff had recovered from surgery to mend her dislocated thumb, the only persisting injury was "a minimal limitation of the flexion of her thumb;" court found that even if that limitation were permanent, it did not rise to the level of a serious injury under New York Insurance Law § 5102(d)). No such certainty exists in the present case regarding the persisting nature of plaintiff's injury. The conflicting post-operative opinions proffered by the parties preclude a determination as a matter of law that plaintiff has not suffered a serious injury.

III. Conclusion

Based on the results of objective medical testing -- including range-of-motion tests, MRIs reflecting disc herniations and disc bulge, and positive Spurling maneuver tests -- and plaintiff's continued complaints of pain and limited functionality, we find that plaintiff's proffer sufficiently raises a question of fact as to whether she has suffered a "serious injury" under New York Insurance Law. Specifically, under the permanent-consequential-limitation standard, plaintiff has raised an issue of fact regarding whether her injury is permanent and constitutes an "important" or "significant" impairment, as opposed to one that is "minor" or "slight." See Barres v. Riker, 85 A.D.3d 1628, 1629, 924 N.Y.S.2d 717, 718-19 (4th Dep't 2011). Plaintiff has also provided competent evidence that the nature of her injury might cause pain that is permanent in nature, and that causes her to have diminished function, even in the wake of palliative surgery.

CONCLUSION

For the foregoing reasons, defendant's motion for summary judgment is denied with respect to (1) causation and to (2) plaintiff's allegations that she has sustained a "serious injury" entitling her to recovery under New York's no-fault insurance law under a theory of either permanent consequential limitation or significant limitation. Defendant's motion is granted with respect to plaintiff's claim that she has suffered a serious injury under the 90/180 category. Dated: New York, New York

July 31, 2012

/s/ _________

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Memorandum and Order have been sent today to: Gene L. Chertock, Esq.
Subin Associates, LLP
150 Broadway
New York, NY 10007 Susan Colleen Branagan, Esq.
Assistant United States Attorney
for the Southern District of New York
86 Chambers Street
New York, NY 10007