United States District Court, S.D. New York
February 3, 2004.
IRIS MOLINA, Plaintiff, -against- UNITED STATES OF AMERICA and NORFFY CASTRO, Defendants; UNITED STATES OF AMERICA, Third-Party Plaintiff, -against- NORFFY CASTRO and MARIO MOLINA, Third-Party Defendants
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
This action arises out of a collision between a United States Postal
Service ("USPS") vehicle and another vehicle in which plaintiff Iris
Molina ("Molina") was a passenger and was injured. She seeks to recover
damages for her injures against the United States (the "Government")
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (b).
The Government moves for summary judgment on the ground that, under New
York law, Molina has not suffered a "serious injury," which is a
prerequisite for her to recover under the FTCA. The motion is granted.
On May 29, 1999, Molina's husband Mario Molina was driving the couple
west on 120th Street in Manhattan when they took a left turn onto
Broadway and collided with an eastbound USPS vehicle. Molina was taken by
ambulance to the hospital, and released the same day. The doctors did not
give her any medication, and Molina cannot recall being prescribed any
Molina visited Dr. Eric Jacobson ("Jacobson") on June 5, 1999, and she
reported pain and a limited range of motion in her neck, left knee,
shoulder, and lower back, as a result of the accident. Jacobson issued
Molina a note indicating that she should not return to her job
she works in the housekeeping department of the Salvation Army
until further examination. Two days later, Molina underwent a spinal
range-of-motion examination with a physical therapist who was working
under Jacobson's supervision. That examination determined that Molina
suffered from a 23 percent impairment of motion in her neck and lower
In a subsequent visit to Jacobson, Molina indicated she was still in
pain, so Jacobson sought to have Molina undergo
more testing. First, Jacobson referred Molina to another doctor to
perform an MRI. The MRI ruled out the possibility of a herniated disc,
but showed that Molina had two slightly bulging discs in her back.
Second, Jacobson referred Molina to Dr. Klara Sosina ("Sosina") to see if
Molina suffered from lumbar radiculopathy, a type of back pain involving
the nerve root. Sosina determined that Molina did not suffer from lumbar
radiculopathy. Sosina recommended that Molina continue with physical
therapy, and that she report to a physician for a follow-up visit in four
weeks. Three and a half weeks later, on September 27, 1999, Molina went
for her final visit to Jacobson, and he told Molina she could return to
work by November 1, 1999, with no limitations.
Molina returned to visit Sosina in February 2003, apparently in
connection with this lawsuit. Although Molina reported continuing neck
and back pain, Sosina testified that her tests upon Molina did not reveal
II. STANDARD FOR A SUMMARY JUDGMENT
The Court may grant summary judgment only "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). The Court must first look to the
substantive law of the action to determine which facts are
material; "[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242
, 248 (1986). Even if the parties dispute material facts, summary
judgment will be granted unless the dispute is "genuine." Id.
at 249. "The mere existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [non-moving
party]." Id. at 252.
Throughout this inquiry, the Court must view the evidence in the light
most favorable to the non-moving party and must draw all reasonable
inferences in favor of that party. See Hanson v. McCaw
Cellular Communications, Inc., 77 F.3d 663, 667 (2d Cir. 1996).
Under the FTCA, a plaintiff may recover against the Government for
personal injuries "caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a
private person, would be liable to the [plaintiff] in accordance with the
law of the place where the act or omission occurred."
28 U.S.C. § 1346(b)(1). Accordingly, the Court must determine
whether the Government, if a private person, would be liable to Molina
under New York law. New York's No-Fault Law precludes recovery for
non-economic loss in auto accident cases, except where the plaintiff has
suffered a "serious injury." N.Y. Ins. Law § 5104(a). As is relevant
here, serious injury includes:
 permanent consequential limitation of use of a
body organ or member;  significant limitation
of use of a body function or system;  or a
medically determined injury or impairment of a
non-permanent nature which prevents the injured
person from performing substantially all of the
material acts which constitute such person's usual
and customary daily activities for not less than
ninety days during the one hundred eighty days
immediately following the occurrence of the injury
N.Y. Ins. Law § 5102(d). Because part of the purpose of the
statute is to "curtail costly and time-consuming court trials," it is
proper to decide the question of whether a plaintiff has suffered a
serious injury at the summary judgment stage. See Licari v.
Elliott, 441 N.E.2d 1088, 1091-92 (N.Y. 1982). Once a defendant
makes a prima facie case that the plaintiff has not suffered a
serious injury, the plaintiff then has the burden to submit evidence to
support her claim of serious injury. See Gaddy v. Eyler,
591 N.E.2d 1176, 1177 (N.Y. 1992). The claim "must be supported by medical
proof based upon credible medical evidence of an objectively measured and
quantified medical injury or condition." Lanuto
v. Constantine, 596 N.Y.S.2d 944, 945 (App. Div.3d Dep't
1993). A "medical opinion premised solely on a plaintiff's subjective
complaints is insufficient to support a claim of serious injury."
Cammarere v. Villanova, 562 N.Y.S.2d 808, 810 (App. Div.2d
Molina argues that her injuries satisfy all three of the above
definitions. In particular, Molina argues that her limited range of joint
motion immediately following the accident constituted a "significant
limitation" and that those injuries prevented her from performing her
"usual and customary daily activities" during the five months before she
returned to work. Molina argues that her injuries are a "permanent"
limitation because she still suffers from back pain, and occasionally
pain in her neck and arm. She asserts that she cannot lift heavy objects,
walk for long distances, or sit for long periods of time. The Government
counters that Molina has not provided any objective evidence
that her injuries meet the standard for "serious injury."
As an initial matter, the Court must grant the Government summary
judgment on the ground that Molina has failed to comply with Local
Rule 56.1, which requires her to submit "a separate, short and concise
statement of material facts as to which it is contended that there exists
a genuine issue to be tried." S.D.N.Y. Local R. 56.1(b). Molina has not
such a statement, and the consequence is that all of the facts in
the Government's statement "will be deemed to be admitted." S.D.N.Y.
Local R. 56.1(c). Taking all of those facts to be true defeats all of
Molina's allegations and stands as an independent ground to enter
judgment on the Government's behalf. Alternatively, the Court agrees with
the Government that, as a matter of law, Molina has not demonstrated that
she suffered from a serious injury.
The Government has easily made a prima facie case that
Molina's injuries do not meet the relevant standard for serious injury.
The Government has submitted the affidavit of its expert, Dr. George
DiGiacinto ("DiGiacinto"), who examined Molina in November 2002 and
determined that she had a full range of motion in her neck and lower
back, and that there were no objective signs that she suffered any
relevant limitation. DiGiacinto also reviewed Molina's 1999 MRI and
concluded that her bulging discs were not caused by the accident but were
instead degenerative. Her examining physician, Jacobson, testified that
Molina should have been able to perform her normal daily functions within
a week following the accident. Sosina, the most recent doctor to examine
Molina, also concluded that there was no objective evidence of a relevant
Molina has failed to sufficiently counter this evidence.
The evidence of Molina's bulging discs is inadmissible because it is
based solely upon an unsworn report from a doctor who has not submitted a
sworn affidavit or otherwise participated in this litigation.
See, e.g., Friedman v. U-Haul Truck Rental,
627 N.Y.S.2d 765, 766 (App. Div.2d Dep't 1995) (holding unsworn MRI
report inadmissible to establish serious injury). In any event, even
assuming the admissibility of this evidence and assuming the accident
caused the bulging discs, Molina has failed to provide objective evidence
of the extent or degree of the alleged resulting physical limitation.
See Ceglian v. Chan, 724 N.Y.S.2d 762 (App. Div.2d
Dep't 2001) (reversing denial of summary judgment because plaintiff
failed to provide "sufficient objective proof of the extent or degree of
the alleged physical limitations resulting from the disc injuries").
Jacobson's deposition testimony as to Molina's neck and back
limitations is based entirely upon Molina's subjective complaints of
pain, which, as stated above, is insufficient. Moreover, that evidence
related to Molina's injury in the days immediately following the
accident. Without any objective evidence that these alleged limitations
lasted much longer, no reasonable juror could conclude that Molina's
injuries were permanent, significant, or curtailed her customary
activities for more than 90 days. See, e.g., Kim
v. Kim, 697 N.Y.S.2d 676,
677 (App. Div.2d Dep't 1999) (holding that evidence of
alleged limitations obtained soon after accident was, without more,
insufficient to survive summary judgment); see also
Petrone v. Thornton, 561 N.Y.S.2d 49, 50 (App. Div 2d Dep't
1990) (holding that "duration" of limitation is a factor in determining
whether limitation is "significant").
Finally, Molina's complaint alleges that she suffered economic losses,
the first $50,000 of which are unrecoverable under New York law.
See N.Y. Ins. Law § 5104(a) (barring recovery for "basic
economic loss"); Id. § 5102(a) (defining "basic economic
loss" as up to $50,000 in certain losses). The Government has submitted
evidence that Molina's economic losses were much less, and Molina's
opposition does not attempt to contest the Government's argument. Thus,
the Court concludes that Molina is not entitled to economic losses as a
matter of law.
For the stated reasons, it is hereby
ORDERED that the motion of defendant United States (the
"Government") for summary judgment is granted and the complaint of
plaintiff Iris Molina is dismissed in its entirety with prejudice. The
Clerk of Court is directed to enter judgment on behalf of the United
States; and it is finally
ORDERED that the Government advise the Court by February 13,
2004 whether, in light of the Court's dismissal by this Order of the
complaint of plaintiff Iris Molina, the Government intends to proceed
with its third-party action against the third-party defendants herein.