Opinion
04 CV 2154 (SJ).
July 14, 2006
THE STUART LAW OFFICE, P.C. Audubon, NJ By: Ian Stuart, Esq., Attorney for Plaintiffs.
FRENCH AND RAFTER, LLP New York, NY By: John Michael Krug, Esq., Attorney for Defendants Atlantic-Heydt Corp. and Aiden McGurk.
LEO T. McGRATH, ESQ. Pleasantville, NY, Attorney for Defendant Scott Kirtland.
MEMORANDUM AND ORDER
Plaintiffs Michael Waldman ("Mr. Waldman") and Linda Waldman ("Mrs. Waldman" and, together with Mr. Waldman, the "Plaintiffs"), brought this action jointly, severally, and in the alternative against defendants Atlantic-Heydt Corp. ("Atlantic"), Aiden McGurk ("McGurk"), and Scott Kirtland ("Kirtland" and, together with Atlantic and McGurk, the "Defendants"), as owners and/or operators of vehicles involved in a collision with Mr. Waldman's vehicle. Plaintiffs bring two causes of action: (1) Mr. Waldman's claim of negligence against Defendants for injuries sustained in an automobile accident with Defendants, and (2) Mrs. Waldman's derivative claim of loss of consortium for the deprivation of Mr. Waldman's love and society as a result of those same injuries. Defendants now move for summary judgment with respect to Plaintiffs' first cause of action, alleging that Plaintiffs cannot meet the requirements set forth under New York Insurance Law for recovery of damages for non-economic loss. For the reasons stated herein, Defendants' motion for summary judgment is DENIED.
Under New York law, "consortium claims . . . are derivative; plaintiff's right of recovery for loss of consortium must be tested against the injured spouse's right to recover personally for his own injuries." Maidman v. Stagg, 441 N.Y.S.2d 711, 713 (N.Y.App.Div. 1981).
JURISDICTION
This Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. § 1332(a)(1); the amount in question is over $75,000 and parties are citizens of different states.
FACTUAL BACKGROUND
On September 26, 2002, Mr. Waldman was operating a motor vehicle that was stopped in traffic on 58th Street near the intersection of 53rd Avenue in Queens, New York. (Am. Compl. ¶ 9.) Defendants McGurk and Kirtland were also operating motor vehicles on 58th Street at or near the intersection of 53rd Avenue in Queens, New York. (Am. Compl. ¶ 11.) Mr. Waldmand's white box truck was rear-ended by Kirtland's small passenger vehicle, and Kirtland's small passenger vehicle was rear-ended by McGurk's red pickup truck. (Waldman Dep. 55:9-56:15, Oct. 19, 2004.)Mr. Waldman noticed his lower back was injured approximately 15-30 minutes after the accident, was taken by ambulance from the accident scene to the hospital, and left the hospital later that same day. (Waldman Dep. 20:8-17, 21:16-17, 22:22-24.) The following day, on September 27, 2002, Mr. Waldman sought further medical attention from his family physician, who prescribed medication, physical therapy, and an MRI. (Waldman Dep. 23:11-19, 24:12-19.) Mr. Waldman was covered under his employer's insurance policy. (Waldman Dep. 17:8-12.) Mr. Waldman returned to work within that week, but worked fewer hours than normal, did only light lifting, and did not drive. (Waldman Dep. 32:9-11, 50:6-20.)
Mr. Waldman's initial physical therapy consultation was on January 10, 2003; thereafter, his therapy included traction, exercises, and massages. (Defs.' Mem. Supp. Mot. Summ. J., Ex. H; Waldman Dep. 25:19-26:5.) Between July and December 2003, Mr. Waldman received several epidural steroid injections for a lumbosacral strain/sprain and disc herniations, and was further examined by several physicians through 2005. (Waldman Dep. 36:4-6; Defs.' Mem. Supp. Mot. Summ. J.2; Pls.' Mem. Opp'n Mot. Summ. J., Ex. A at 3.)
Plaintiffs filed the instant action on May 17, 2004. (Am. Compl. ¶ 1.) Plaintiffs' complaint alleges (1) that Mr. Waldman has experienced and will continue to experience pain, disability, and mental anguish; (2) that Mr. Waldman has incurred and will continue to incur medical expenses; (3) that Mr. Waldman has a diminished earning capacity; (4) that Mr. Waldman has lost and will continue to lose enjoyment of life; (5) that Mrs. Waldman has lost and will continue to lose the love and society of her husband; and (6) that Mrs. Waldman has lost the services of her husband. (Am. Compl. ¶¶ 13-16, 19.)
Defendants Atlantic and McGurk filed a motion for summary judgment on September 16, 2005, on the grounds that Mr. Waldman had not suffered a serious injury as defined in New York Insurance Law § 5102(d) and as required by New York Insurance Law § 5104(a). (Defs.' Mem. Supp. Mot. Summ. J. 1.) On the same grounds and with the same arguments, Defendant Kirtland filed a motion for summary judgment on October 6, 2005.
In a pre-motion conference held on July 27, 2005, the Court established a briefing schedule for Defendants' summary judgment motions. Defendants' moving papers were due by September 16, 2005, and both Atlantic and McGurk complied with this deadline. On October 6, 2005, Kirtland filed a document entitled "Cross-Motion for Summary Judgment." See Docket No. 04 CV 2154, Entry 31. In the affirmation supporting this motion, Kirtland's counsel, Leo T. McGrath, Esq. ("McGrath"), informed the Court that he adopted, and incorporated by reference, into Kirtland's motion the positions and arguments set forth in Atlantic's and McGurk's motion for summary judgment. (McGrath Affirmation 2, Oct. 4, 2005.) In a telephone call with this Court's chambers on or about October 12, 2005, McGrath informed the Court that he erred in not communicating prior to the September 16, 2005 deadline his intent to adopt the summary judgment motion of the other co-defendants. In a subsequent telephone call with this Court's chambers, counsel for Atlantic and McGurk, Daniel Tepper, Esq. ("Tepper"), confirmed having a conversation with McGrath regarding his intent to adopt the motion of the co-defendants. However, Tepper indicated to the Court that, given the Court's briefing schedule, McGrath's submission appeared to be untimely. Neither Plaintiffs, Atlantic, nor McGurk filed formal opposition papers to Kirtland's motion. After considering the totality of the circumstances, in an exercise of its discretion, the Court will consider Kirtland's motion timely filed for the purposes of this opinion.
STANDARD OF REVIEW
A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the movant to establish the absence of any genuine issue of material fact. Celotex Corp., 477 U.S. at 323; see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). It is clear that "[i]n moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claims."Goenaga, 51 F.3d at 18; see also Celotex Corp., 477 U.S. at 324. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).The Court's responsibility in assessing the merits of a summary judgment motion is not to try the issues of fact, but rather to `determine whether there are issues of fact to be tried.'" Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)). Furthermore, the Court must draw all reasonable inferences and resolve all ambiguitics in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. See Anderson, 477 U.S. at 255; see also Sutera, 73 F.3d at 16.
If, however, the moving party meets its initial burden of demonstrating "proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required under Rule 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (citations omitted). To satisfy this requirement, the nonmoving party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or `upon the mere allegations or denials of the [nonmoving] party's pleading.'" Id. at 532-33 (quoting Fed.R.Civ.P. 56(e)) (citations omitted).
Finally, this Court must adhere to the New York standard for evaluating summary judgment motions in automobile cases, which provides as follows:
On summary judgment, a defendant must establish a prima facie case that plaintiff's injuries were not serious and then the burden shifts to plaintiff. See Gaddy v. Eyler, 591 N.E.2d 1176, 1177 (N.Y. 1992). For plaintiff to defeat a summary judgment motion, admissible evidence must be presented in the form of sworn affidavits by physicians. See Bonsu v. Metro. Suburban Bus Auth., 610 N.Y.S.2d 813, 813-14 (N.Y.App.Div. 1994); McLoyrd v. Pennypacker, 577 N.Y.S.2d 272, 273 (N.Y.App.Div. 1991). In support of its argument that there is no such serious injury, defendant may rely on the unsworn reports by plaintiff's physicians, but must provide evidence from its own physicians in the form of sworn affidavits. See McGovern v. Walls, 607 N.Y.S.2d 964 (N.Y.App.Div. 1994); Looney v. Epervary, 599 N.Y.S.2d 989, 989-90 (N.Y.App.Div. 1993).Morrone v. McJunkin, No. 98 Civ. 2163, 1998 U.S. Dist. LEXIS 19506, at *5-6 (S.D.N.Y. 1998). However, "a reference to . . . unsworn or unaffirmed reports in [a defendant's] moving papers is sufficient to permit the plaintiff to rely upon and submit these reports in opposition to the motion." Kearse v. N.Y. City Transit Auth., 789 N.Y.S.2d 281, 283 n. 4 (N.Y.App.Div. 2005) (citing Ayzen v. Melendez, 749 N.Y.S.2d 445 (N.Y.App.Div. 2002)).
There is no apparent disagreement between the parties as to the applicability of New York law in this action. Defendants argue in favor of choosing New York law in their motion for summary judgment by stating that "`the law of the jurisdiction in which the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.'" Brink's Ltd. v. South African Airways, 93 F.3d 1022, 1031 (2d Cir. 1996) (quoting Cooney v. Osgood Machinery, Inc., 595, 612 N.E.2d 277, 280 (N.Y. 1993)). In Plaintiffs' response, Plaintiffs do not dispute the applicability of New York law, and oppose summary judgment by citing to New York Insurance Law. In light of these circumstances, the Court agrees that New York law is the appropriate choice for this action.
DISCUSSION
Section 5104(a) of New York Insurance Law provides that "in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss." In relevant part, a "serious injury," as defined by statute, is a personal injury resulting in
(1) permanent loss of use of a body organ, member, function, or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; or (4) 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 (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment.
There are nine different categories of "serious injury" according to N.Y. Ins. Law § 5102(d), but only four are relevant for the purposes of this action. The remaining five are as follows: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; and (5) loss of a fetus. See N.Y. Ins. Law § 5102(d).
N.Y. Ins. Law § 5102(d) (2006). If Plaintiff did not suffer a serious injury, then Plaintiff does not have a valid claim to assert, and there is no question for a jury. Licari v. Elliot, 441 N.E.2d 1088, 1092 (N.Y. 1982).
The New York Court of Appeals has explained that the purpose of this rule was to comport with the "legislative intent underlying [New York's] No-Fault Law," which was intended to "weed out frivolous claims and limit recovery to significant injuries."Toure v. Avis Rent A Car Sys. Inc., 774 N.E.2d 1197, 1199 (N.Y. 2002) (citation omitted). "As such, [the Court has] required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold." Id. "When supported by objective evidence, an expert's assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact." Id. at 1200. By contrast, an expert's opinion unsupported by objective evidence may be entirely speculative, thus frustrating the legislative intent to eliminate insignificant injuries and frivolous claims. Id.
Here, Plaintiffs are seeking relief for non-economic loss, and, as a result, Mr. Waldman's injuries must be "serious" as provided in § 5104(a). Because Plaintiffs have not identified which category of "serious injury" they seek relief under, an examination of all potentially relevant categories is appropriate.
II. Demonstrating "Serious Injury" for Non-Economic Losses
A. Permanent Loss of Use
Beginning with the first relevant category of "serious injury," the Court of Appeals of New York has held that "permanent loss of use" must be total to qualify as a "serious injury." Oberly v. Bangs Ambulance Inc., 751 N.E.2d 457, 460 (N.Y. 2001). Because all medical accounts suggest Mr. Waldman has at least partial use of his injured lumbar region, Mr. Waldman's injury cannot be total and thus cannot qualify as a serious injury under the "permanent loss of use" category. The most serious characterization of Mr. Waldman's injury comes from Dr. Henry David ("Dr. David"), an orthopedic surgeon and one of Mr. Waldman's examining physicians. Dr. David authored an unaffirmed medical report that described, in part, Mr. Waldman's injury as "[f]ifty (50) percent permanent partial total disability of the lumbar spinc." (Pls.' Mcm. Opp'n Mot. Summ. J., Ex. A at 5) (emphasis added.) A disability cannot be simultaneously partial and total, thus, if Mr. Waldman's lumbar spine is 50 percent disabled, then his disability is not total. Because Mr. Waldman's injury is by no account total, the "permanent loss of use" category warrants no further analysis.
B. Permanent Consequential Limitation and Significant Limitation
Second, in evaluating both "permanent consequential limitation" and "significant limitation," the Court of Appeals of New York has held that "whether limitation of use or function is `significant' or `consequential' . . . relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on normal function, purpose and use of the body part." Toure, 774 N.E.2d at 1201 (citing Dufel v. Green, 647 N.E.2d 105, 107 (N.Y. 1995)). Moreover, while "permanent consequential limitation" and "significant limitation" each compare the plaintiff's injured condition with a non-injured condition, "permanent consequential limitation" requires a greater degree of proof than "significant limitation," because only ["permanent consequential limitation"] requires proof of permanency. Altman v. Gassman, 608 N.Y.S.2d 651 (N.Y.App.Div. 1994) (citation omitted).
1. Defendants' Prima Facie Case
Defendants seek summary judgment for "permanent consequential limitation" and "significant limitation" based on tests administered to Mr. Waldman revealing normal and full range of motion, normal strength, and normal reflexes. On May 11, 2005, Dr. William Kulak ("Dr. Kulak"), an examining physician, submitted a sworn affidavit that noted the following with respect to Mr. Waldman's physical condition: "Flexion at the waist is negative at 100 degrees with [Mr. Waldman's] fingertips touching his toes; rising to 0 is negative and backwards at 35 degrees is negative with normal motion being 90 degrees of flexion and 30 degrees of extension." (Defs.' Mem. Supp. Mot. Summ. J., Ex. D at 3.) Dr. Kulak's affidavit further noted that "the claimant is fully functional for activities of daily living and occupational duties in a manner as would have been present absent this injury. There is no indication of any neurological or degenerative process having resulted from this occurrence. Specifically in regard to this injury, there is no disability and no permanency." (Defs.' Mem. Supp. Mot. Summ. J., Ex. D at 9.)
On April 18, 2005, Dr. Brian Hainline ("Dr. Hainline"), an independent medical examiner hired by Atlantic and McGurk, noted the following in his sworn affidavit: "Trunk range of motion is full, and no symptoms are reproduced. . . . Straight leg raising is negative. Hip movement is normal." (Defs.' Mem. Supp. Mot. Summ. J., Ex. E at 4.) Dr. Hainline also observed that Mr. Waldman had "no sensory loss in any lumbar nerve distribution" and "a normal neurological exam." (Defs.' Mem. Supp. Mot. Summ. J., Ex. E at 5, 13.) On March 3, 2003, Dr. Steven Valentino ("Dr. Valentino"), an orthopedic and reconstructive spine surgeon, made the following observations after a comprehensive orthopedic evaluation: "Physical examination reveals he walks normally. He is able to heel and toe-walk and perform a squat and return to the erect posture without difficulty. . . . Neurological examination is normal. The deep tendon reflexes are equal and symmetric. Motor examination reveals normal strength, mass and tone. Sensory examination is intact. . . . Impression: Resolved work-related lumbar strain. . . . He has recovered without ongoing impairment or disability." (Defs.' Mem. Supp. Mot. Summ. J., Ex. J at 1-2) (capitalization altered).
Finally, on December 9, 2003, Dr. Vanette Perkins ("Dr. Perkins), Mr. Waldman's pain management physician, noted that "[o]n physical exam [Mr. Waldman's] range of motion is significantly improved with no restrictions on flexion, extension and rotation. The previously identifiable lumbar trigger points and spasms are no longer palpable. Straight leg raising was negative bilaterally. His gait was intact with no limp. Lower extremity sensation was intact . . . with no complaints of low back pain today. . . . His prognosis is good for long-term relief . . ." (Defs.' Mem. Supp. Mot. Summ. J., Ex. N at 1-2.) Further, Defendant argues that Mr. Waldman's MRI revealing a herniated discs does not in itself constitute a serious injury. The Court agrees with this assertion, as New York law confirms that "diagnosis of a bulging or herniated disc, by itself, does not constitute a serious injury." Toure, 774 N.E.2d at 1201 n. 4. Thus, Mr. Waldman's herniated discs are insufficient to prevent Defendants from proving prima facie that Mr. Waldman has not suffered a serious injury.
Read together, Defendants' evidence demonstrates that Mr. Waldman's condition has improved to the point of normal. Thus, the Court finds that Defendants have met their burden in showing that Mr. Waldman's condition does not have the permanency required by "permanent consequential limitation." Additionally, when comparing the degree of Mr. Waldman's injury with the normal function, purpose, and use of Mr. Waldman's back, Defendants have met their burden in demonstrating that Mr. Waldman's injury does not rise to the level of "significant limitation of use" because Defendants' evidence indicates Mr. Waldman has a "normal" back.
Because Defendants have met their burden of proving prima facie that Plaintiffs do not qualify for relief under "permanent consequential limitation" or "significant limitation" of use, the burden shifts to Plaintiffs to demonstrate an issue of material fact. For Plaintiffs to maintain a claim under "permanent consequential limitation" or "significant limitation," Plaintiffs must provide admissible evidence describing the nature of Mr. Waldman's limitations.
2. Admissibility of Plaintiffs' Evidence
Defendants contend that Plaintiffs' opposition to Defendants' motion for summary judgment only provided proof of "serious injury" in inadmissible form, namely unsworn physicians' letters describing the quality of Mr. Waldman's lower back injury. See Grasso v. Angerami, 588 N.E.2d 76, 77 (N.Y. 1991) (holding that unsworn doctor's reports submitted by the plaintiff as proof of "serious injury" were inadmissible and insufficient to defeat motion for summary judgment, and because the plaintiff did not offer an excuse for failing to provide admissible evidence, the plaintiff's evidence need not be considered). Further, Defendants argue that because none of Plaintiffs' letters were in the form of an affidavit, Plaintiffs are not entitled to rely on, and the Court need not consider, Plaintiffs' letters in deciding the pending motion.
Plaintiffs respond that there is no requirement of providing medical reports in the form of an affidavit if Defendantsreferred to Plaintiffs' unsworn letters in Defendants' moving papers. See Ayzen v. Melendez, 749 N.Y.S.2d 445 (N.Y.App. Div. 2002) (holding that a defendant's reference to an unsworn or unaffirmed report is sufficient to make that same report available in opposing a motion for summary judgment). Plaintiffs argue that, because Defendants referred to Plaintiffs' unsworn reports in Defendants' motion for summary judgment, those unsworn reports are now available to Plaintiffs.
Defendants reply that Plaintiffs mislead the Court, and a correct statement of law is as follows: "A defendant may submit unsworn medical reports and records of the injured plaintiffs physicians in support of a motion for summary judgment. . . . In doing so, however, the defendant opens the door for the plaintiff to rely upon the same unsworn or unaffirmed reports and records in opposition to the motion." Kearse v. N.Y. City Transit Auth., 789 N.Y.S.2d 281, 283 n. 4 (N.Y.App.Div. 2005). Defendants maintain that because they (Defendants) did not submit unsworn reports in their motion for summary judgment, Plaintiffs are not permitted to rely on those reports.
Defendants fail to observe that the Kearse court acknowledged the standard set forth in Ayzen by specifically stating that "even a reference to the unsworn or unaffirmed reports in the moving papers is sufficient to permit the plaintiff to rely upon and submit these reports in opposition to the motion." Id. (emphasis added). The Court's review of the record confirms that Defendants did in fact refer to Plaintiffs' unsworn medical reports in Defendants' motion for summary judgment. For example, Dr. David's January 5, 2004, examination of Mr. Waldman is referenced in Exhibit D of Defendants' memorandum in support of the summary judgment motion. Additionally, Defendants submitted Dr. Hainline's April 15, 2005, affidavit which references several medical reports Plaintiffs submitted in opposition to summary judgment. (Defs.' Mem. Supp. Mot. Summ. J., Ex. E at 7-8.) Plaintiffs are therefore permitted to rely on this evidence.
The only document submitted by Plaintiffs that is not referenced in Defendants' moving papers is Mr. Waldman's self-serving affidavit listing his alleged hardships. Mr. Waldman asserts he "was forced, because of the pain, to stop working at [his] job." (Pls.' Mem. Opp'n Mot. Summ. J., Ex. C at 1.) Additionally, Mr. Waldman stated that he "still experience[s] back pain going into [his] left leg on a daily basis" and that "physical activity brings on . . . pain which can last for days." (Pls.' Mem. Opp'n Mot. Summ. J., Ex. C at 2.) Finally, he is "unable to bicycle, walk long distances, run, play with [his] children, skate, [or] scuba dive." (Pls.' Mem. Opp'n Mot. Summ. J., Ex. C at 2.) The Court notes that "self-serving allegations are entitled to little weight, and are certainly insufficient to raise a triable issue of fact." Zoldas v. Louise Cab Corp., 489 N.Y.S.2d 468 (N.Y.App.Div. 1985).
3. Plaintiffs' Objective Evidence of Serious Injury
The question remains as to whether, in the absence of sworn reports, Plaintiffs' admissible medical evidence is sufficient to defeat a summary judgment motion. Although the Ayzen court concluded that a plaintiff could rely upon the same unsworn MRI results used in a defendant's motion for summary judgment, theAyzen plaintiff used the unsworn evidence in their own sworn affidavit. In the instant case, Plaintiffs have not submitted any sworn affidavits and seek to rely solely upon unsworn doctors reports. While it is clear that Plaintiff may rely on the unsworn reports cited by Defendant, the Plaintiff has not provided, and the Court's diligence has not revealed, precedent demonstrating that Plaintiff need not have sworn evidence. Therefore, the Court holds that Plaintiffs are still required to submit some evidence from their own physicians in the form of sworn affidavits and may not solely rely upon the unsworn reports referenced by Defendants to defeat summary judgment. To allow Plaintiffs to rely solely upon documents referenced by the Defendants would "discourage completeness and accuracy . . . to the detriment of the court's understanding." A.B. Med. Servs. PLLC, D.A.V. v. Travelers Prop. Cas. Corp., 783 N.Y.S.2d 244, 250 (N.Y. Civ. Ct. 2004).
However, even assuming that Plaintiffs are permitted to rely solely upon unsworn medical reports, they must still produce objective proof of a serious injury in order to satisfy the requirements set forth by New York statute and common law.Toure, 774 N.E.2d at 1199. This objective evidence may take the form of either "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion[,]" or "[a]n expert's qualitative assessment of a plaintiff's condition . . . 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."Id. at 1200 (emphasis original). The Court finds Toure to be instructive with respect to the proper application of § 5102(d) and the Court's evaluation of Plaintiffs' evidence.
In Toure, plaintiff's vehicle was rear-ended by defendant, and plaintiff brought suit pursuant to New York Insurance Law § 5102(d) under "permanent consequential limitation." Id. at 1202. The plaintiff was taken to the hospital with pain in her lower back and tingling in her neck and spine, and released later that same day. Id. The plaintiff's pain persisted and, in addition to attending physical therapy, plaintiff sought treatment from various providers. Id. Plaintiff stated that she could no longer do any heavy lifting, could no longer shovel the driveway like she used to, could no longer clean the house like she used to, and could no longer pick up her children. Id.
Plaintiff's physician's testimony indicated tenderness in plaintiff's neck and lower back and discomfort with some neck motion. Id. Plaintiff was diagnosed with a cervical and lumbosacral sprain consistent with a rear-end collision. Id. Based on his review of plaintiff's MRI, plaintiff's physician concluded that plaintiff suffered two herniated discs in her cervical spine and that this injury was consistent with complaints regarding the physical limitations of plaintiff's neck and back. Id. Plaintiff's physician also stated that plaintiff's injury was permanent, a conclusion founded on plaintiff's history, a physical examination, and review of the MRI. Id. Toure held that, in viewing the evidence in the light most favorable to the plaintiff, plaintiff's limitations were not so insignificant as to bar recovery. Id. at 1203. Plaintiff presented physician testimony stating that plaintiff suffered two herniated cervical discs as a result of the automobile accident.Id. Additionally, the medical opinion was supported by objective evidence interpreted by the physician, namely, the MRI films. Id. Toure further held that while "this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff's neck or back, he described the qualitative nature of plaintiff's limitations based on the normal function, purpose and use of her body parts." Id. In particular, the physician correlated plaintiff's herniated discs with her inability to perform certain normal, daily tasks. Id.
In the instant case, Dr. David, one of Mr. Waldman's physicians, does not ascribe a numeric percentage to Mr. Waldman's loss of range of motion as described in Toure, but rather describes Mr. Waldman's percentage of disability. (Pls.' Mem. Opp'n Mot. Summ. J., Ex. A at 5.) Dr. David's report states that Mr. Waldman suffers from "[f]ifty (50) percent of permanent partial total disability of the lumbar spine. . . ." (Pls.' Mem. Opp'n Mot. Summ. J., Ex. A at 5.) Dr. David further states that Mr. Waldman's 50 percent "permanent partial total disability" is a result of his accident with Defendants, and this diagnosis is based on Mr. Waldman's medical history, subjective complaints, and "demonstrable, objective, medical evidence in the form of positive objective findings of [Mr. Waldman's] physical examination. . . ." (Pls.' Mem. Opp'n Mot. Summ. J., Ex. A at 4-5.)
Notwithstanding Dr. David's conclusions regarding Mr. Waldman's disability, the only entry in Dr. David's examination report suggesting that Mr. Waldman had less than normal range of motion was written as follows: "Motions were carried out as measured with the goneometer flexing his trunk 75-80 degrees, extension, left and right side bending and left and right side rotation were carried out 25 degrees, representing some limited motion." (Pls.' Mem. Opp'n Mot. Summ. J., Ex.A at 4) (emphasis added). The remainder of the examination report is positive in tone, stating that Mr. Waldman appeared to be in good general physical condition; had no gross spinal curvatures; did not complain of any appreciable discomfort to palpitation; had good motor skills in his extremities; did not experience atrophy; had physiological superficial and deep tendon reflexes; and experienced no sensory impairment. (Pls.' Mem. Opp'n Mot. Summ. J., Ex. A at 4.) Further, Dr. David states that if Mr. Waldman undergoes "any further diagnostic studies and treatment, following the termination of these studies and treatment, he will have to be re-evaluated and [his] disability estimate may have to be changed." (Pls.' Mem. Opp'n Mot. Summ. J., Ex.A at 5.)
While the above referenced physician also stated that his findings were based upon a reasonable degree of medical probability and certainty, Pls.' Mem. Opp'n Mot. Summ. J., Ex. A at 5, this statement is insufficient to establish Plaintiffs' prima facie case. Because Mr. Waldman's physician did not assign a quantitative percentage to Mr. Waldman's loss of range of motion, but instead evaluated Mr. Waldman's percentage of disability and described Mr. Waldman's loss of motion as "some limited motion," Plaintiffs submit evidence that fails to demonstrate "serious injury" with the necessary objective precision delineated in Toure. Additionally, none of Plaintiffs' medical reports submitted in opposition to the motion for summary judgment are in the form of a qualitative evaluation with an objective basis comparing Mr. Waldman's lumbar limitations to normal function, purpose, and use of the lumbar region. As such, Plaintiffs fail to submit evidence allowing Plaintiffs to maintain a claim of "serious injury" under either of Toure's "significant limitation" or "permanent consequential limitation" tests.
C. The 90/180 Impairment Test
For Plaintiffs to qualify for the 90/180 category of "serious injury," Mr. Waldman would need to prove that he has been unable to perform substantially all of his usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the injury. "The words `substantially all' should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment." Licari, 441 N.E.2d at 1091.
To demonstrate that Mr. Waldman's injury fails the 90/180 test, Defendants offer Mr. Waldman's deposition testimony stating that, after he was injured, he returned to work within one week of his injury. (Waldman Dep. 32:9-11.) Additionally, Defendants offer evidence that Mr. Waldman does not know how much total time he missed from work continuously. (Waldman Dep. 49:13-18.)
While Defendants raise some evidence that Mr. Waldman's injury was not serious pursuant to the 90/180 category, Defendants fail to meet their burden at this stage. The Court finds Pollard v. Brown, 511 N.Y.S.2d 704 (N.Y.App.Div. 1987), to be instructive. In Pollard, the plaintiff was driving his car when the defendant rearended him. Id. at 704. The plaintiff received several injuries including acute lumbosacral strain, acute muscle strain, ligamentous strain, and chest contusions.Id. at 704-05. Thereafter, the plaintiff was hospitalized for four days and unable to return to work for fifty-one days. Id. at 705. When the plaintiff returned to work, he was unable to lift objects weighing up to 60 pounds, and was temporarily given a desk job without a reduction in pay. Id. About 90 days after the accident, the plaintiff returned to his former job, but was still was unable to lift heavy objects. Id. Pollard held that summary judgment was inappropriate in the 90/180 category where the record reveals that the defendants have failed to establish a prima facie case that plaintiff's injuries were not serious. Id. Relying on the fact that the plaintiff's professional duties had changed from physical duty to clerical duty for the remainder of the statutory period, the Pollard court held that it was unable to consider unsworn medical statements submitted by defendants and that defendants' additional attorney affidavits and the other documents failed to substantiate adequately defendants' allegations that plaintiff did not sustain a serious injury. Pollard, 511 N.Y.S.2d at 705. Accordingly, the Pollard court concluded that "[w]here . . . documents submitted in support of the motion fail . . . to adequately substantiate that plaintiff did not sustain a serious injury [, summary judgment should be denied]." Id.
In this case, Mr. Waldman's deposition testimony indicates that, upon Mr. Waldman's return to employment, he was relegated to light duty with light lifting and no driving. (Waldman Dep. 50:15-21.) Unlike Pollard, there remains an ambiguity in this case as to the extent to which Mr. Waldman's duties were curtailed post-accident. Defendants have demonstrated that Mr. Waldman's injury initially prevented him from attending work for one week at maximum; however, they have proffered no evidence clarifying Mr. Waldman's specific duties before the injury, how those duties changed after the injury, and how long those changes were in effect.
Viewed in the light most favorable to the Plaintiffs, the Court finds that there remains a genuine issue of fact regarding whether Mr. Waldman was prevented from engaging in "substantially all" of his usual and customary activities as described in the 90/180 category and, thus, whether Mr. Waldman suffered a serious injury. Therefore, Defendants are not entitled to summary judgment.
CONCLUSION
For the reasons stated herein, Defendants' motion for summary judgment is hereby DENIED. The parties shall contact the Court to schedule a pre-trial conference within 30 days of the date of entry of this order.
SO ORDERED.