United States District Court, S.D. New York
March 20, 2004.
MICHAEL EBEWO, Plaintiff, -against- JESUS MARTINEZ, Defendant
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION and ORDER
This diversity action arises out of an alleged accident in which a
car owned and operated by the defendant, Jesus Martinez, struck the
plaintiff, Michael Ebewo, as he was crossing the street in the Bronx, New
York. The plaintiff filed this suit against the defendant alleging state
law claims based on negligence.
The defendant now moves for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure on the ground that the plaintiff's
claims are barred by statute because he has not suffered a "serious
injury" as defined by New York's no-fault automobile insurance law.
See N.Y. Ins. L. §§ 5104(a) and 5102(d).
The standard for granting summary judgment is well established. Summary
judgment may not be granted unless "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 (1986); Gallo v. Prudential
Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The
trial court's task at the summary judgment motion stage of the litigation
is carefully limited to discerning whether there are genuine issues of
material fact to be tried, not to deciding them. Its duty, in short, is
confined at this point to issue-finding; it does not extend to
issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the
initial burden of "informing the district court of the basis for its
motion" and identifying the matter that "it believes demonstrate[s] the
absence of a genuine issue of material fact." Celotex, 477 U.S. at 323.
The substantive law governing the case will identify those facts which
are material and "only 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
In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see
also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any
evidence in the record from any source from which a reasonable inference
could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its
burden, the burden shifts to the nonmoving party to come forward with
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the
record and "may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not credible."
Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see
also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting
The following facts are undisputed except where otherwise noted. The
alleged accident occurred on November 23, 1999 at the intersection of
University Avenue and Tremont Avenue in the Bronx, New York, at about
12:30 p.m. (Def.'s Rule 56.1 St. ¶ 1; Pl.'s Resp. Rule 56.1 St. ¶
1.) Each party has a different view of the circumstances of the alleged
The defendant claims that he was stopped at a red light, and that when
the light turned green, he remained stationary to
allow pedestrians to cross in front of him before he made a left turn.
(Def.'s Rule 56.1 St. ¶ 3.) The defendant claims that he was then hit
from the rear by a Ford pick-up truck and that the impact caused his car
to move forward about one foot. (Id. ¶¶ 3-4.) The defendant claims that he
then exited his car to inspect for damage, and that upon returning from
the rear of the car he encountered the plaintiff, who was then standing
and writing on a piece of paper. (Id. If 5-6.) The defendant claims that
a crowd formed and threatened him, which caused him to leave. (Id. ¶ 6.)
The defendant maintains that his car did not hit the plaintiff or any
other pedestrian. (Id. ¶ 7.)
The plaintiff claims that as he was crossing the street in front of the
defendant's car, the defendant ran a red light, knocked the plaintiff to
the ground, and dragged the plaintiff a few feet. (Pl.'s Resp. Rule 56.1
St. ¶ 1.) The plaintiff disputes the defendant's claim that a Ford
pick-up truck was involved in the accident. The plaintiff claims that
after he was hit, the defendant got out of his car momentarily but then
returned and drove off. (Id. ¶ 3.) The plaintiff concedes that a crowd
had formed and threatened to attack the defendant. (Id. ¶ 6.)
The plaintiff was given an MRI examination on December 9, 1999, and
that examination revealed evidence of disc herniation in the plaintiff's
spine. (Affidavit of Steven Brownstein, M.D.
dated July 2, 2003, attached as Ex. 6 to Affidavit of Vincent I.
Eke-Nweke dated July 7, 2003 ("Eke-Nweke Aff.").)
One of the plaintiff's treating physicians, Dr. Enrique Hernandez,
concluded in December 2000 that the plaintiff was experiencing
thirty-degree decreased range of motion of the cervical and lumbar
spine, and that the plaintiff had suffered injuries that included a closed
head injury with post-traumatic headaches, a contusion sprain to the
cervical and lumbar spine regions, and a contusion injury to the left
knee. (Report of E. Hernandez, M.D., dated Dec. 20, 2000 attached as Ex.
L to Affidavit of Joel Scott Ray dated June 18, 2003 ("Ray Aff."), at
As a result of the injuries he allegedly sustained on November 23,
1999, the plaintiff missed approximately one month of work as a teacher.
(See Transcript of Deposition of Michael Ebewo dated Oct. 11, 2002
("Ebewo Dep.") attached as Ex. F to Ray Aff., at 10, 82.) The plaintiff
claims that he continues to experience pain and stiffness in his neck and
back as well as various physical limitations that prevent him from
engaging in certain everyday tasks and activities. (Affidavit of Michael
Ebewo dated July 2, 2003 ("Ebewo Aff.") attached as Ex. 9 to Eke-Nweke
Aff., at ¶¶ 7-8.) In addition to these injuries, the plaintiff alleges
"that he has also suffered from irritability and a decreased sexual
drive. (Ebewo Dep. at 92-94.)
On April 21, 2003, the plaintiff was examined by two experts retained
by the defendant. Dr. Robert Israel conducted an orthopedic examination,
and he concluded that the plaintiff had made a complete recovery from any
injuries he might have sustained as a result of the alleged accident, and
that the plaintiff had not sustained a permanent injury that would
require further testing, treatment, or therapy. (Affidavit of Dr. Robert
Israel, M.D., dated June 17, 2003 attached as Ex. I to Ray Aff., ¶
6.) Dr. Andrew Ivanson conducted a neurological examination, and he
concluded that the plaintiff had recovered from any injuries he might
have sustained in the alleged accident and that there were no objective
neurological findings to substantiate the plaintiff's subjective
complaints. (Affidavit of Dr. Andrew Ivanson dated June 14, 2003 attached
Ex. J to Ray Aff., ¶ 2.) He further concluded that the plaintiff has
no disability and does not require any neurological treatment, therapy,
or testing. (Id. ¶ 7.)
The defendant filed this motion for summary judgment on June 19, 2003.
In his papers in opposition to the motion, the plaintiff submitted the
affidavit of Dr. Gonzalo C. Robles, Jr., who examined the plaintiff on
July 2, 2003. (Affidavit of Gonzalo C. Robles, Jr., M.D., dated July 2,
2003 ("Robles Aff.") attached as Ex. 5 to Eke-Nweke Aff., ¶ 2.) Dr.
Robles concluded that the plaintiff was still suffering from neck and
and a reduced range of motion as a result of the bulging and herniated
discs disclosed on the plaintiff's MRI report, and that the plaintiff's
condition is chronic, permanent and partially disabling in nature. (Id.
The defendant moves for summary judgment on the ground that the
plaintiff has not suffered a "serious injury" as required by New York's
no-fault automobile insurance law.
New York's no-fault automobile 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." N.Y. Ins. L. § 5104(a); D'Avolio v. Dictaphone Corp.,
822 F.2d 5, 6 (2d Cir. 1987); Rosas v. Hertz Corp., No. 96 Civ. 7165, 1997
WL 736723, at *2 (S.D.N.Y. Nov. 24, 1997) (citing Licari v. Elliott,
441 N.E.2d 1088 (N.Y. 1982)). New York Insurance Law § 5102(d) defines a
"serious injury" as follows:
"Serious injury" means a personal injury which results
in death; dismemberment; significant disfigurement; a
fracture; loss of a fetus; permanent loss of use of a
body organ, member, function or system; permanent
consequential limitation of use of a body organ or
member; significant limitation of use of 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 or impairment.
N.Y. Ins. L. § 5102(d). Whether a plaintiff has sustained a serious
injury, and thus has a cause of action within the meaning of the
statute, is a threshold issue for the court to decide. Licari, 441 N.E.2d
On summary judgment, once the defendant has established a prima facie
case that the plaintiff has not suffered a "serious injury" as defined by
§ 5102(d), the burden then shifts to the plaintiff "to come forward with
sufficient evidence to overcome defendant's motion by demonstrating that
[he] sustained a serious injury within the meaning of the No-Fault
Insurance Law." Gaddy v. Eyler, 591 N.E.2d 1176, 1177 (N.Y. 1992). To
defeat a summary judgment motion, the plaintiff must present admissible
evidence in the form of sworn affidavits by physicians. See Morrone v.
McJunkin, No. 98 Civ. 2163, 1998 WL 872419, at *2 (S.D.N.Y. Dec. 15,
1998); Grasso v. Angerami, 588 N.E.2d 76, 77 (N.Y. 1991). To support his
argument that the plaintiff did not suffer a serious injury within the
meaning of the statute, the defendant may rely on unsworn reports by the
plaintiff's physicians, but reports from physicians retained by the
defendant must be in the form of sworn affidavits. See
Morrone, 1998 WL 872419, at *2; Marsh v. Wolfson, 587 N.Y.S.2d 695, 696
(App. Div. 1992).
The defendant has met his initial burden by making a prima facie
showing that the plaintiff has not suffered a "serious injury." The
defendant has submitted sworn reports from two physicians who concluded
that the plaintiff has completely recovered from any injuries he might
have sustained in the alleged accident, and that the plaintiff suffers
from no permanent injuries. See Shinn v. Catanzaro, 767 N.Y.S.2d 88, 91
(App. Div. 2003) (concluding that defendant met burden by submitting
sworn affirmation of physician who examined plaintiffs and concluded
plaintiffs were neither "seriously nor permanently injured"); Grossman v.
Wright, 707 N.Y.S.2d 233, 236 (App. Div. 2000) (per curiam) ("[A]
defendant can establish that the plaintiff's injuries are not serious
within the meaning of Insurance Law § 5102(d) by submitting the
affidavits or affirmations of medical experts who examined the plaintiff
and conclude that no objective medical findings support the plaintiff's
The determinative issue on this motion is whether the plaintiff has
submitted sufficient evidence to raise a triable issue of fact as to
whether he suffered a serious injury within the meaning of the: statute.
The plaintiff submitted a sworn affidavit from the physician who
conducted an MRI exam of the
plaintiff in December 1999, and who concluded that the plaintiff s MRI
revealed evidence of disc herniation in the plaintiff's spine. That
physician, however, did not purport to examine the plaintiff after
December 1999, and did not opine on any continuing limitations as a
result of the conditions evidenced in the MRI. Under New York law, "a
bulging or herniated disc may constitute a serious injury within the
meaning of § 5102(d)," but "a plaintiff must provide objective evidence
of the extent or degree of the alleged physical limitations resulting
from the disc injury and its duration." Elfiky v. Harris, 754 N.Y.S.2d 59,
60 (App. Div. 2003) (internal quotation marks omitted); see also Gualtieri
v. Farina, 283 F. Supp.2d 917, 925 (S.D.N.Y. 2003); Rose v. Furgerson,
721 N.Y.S.2d 873, 876 (App. Div. 2001); Ceglian v. Chan, 724 N.Y.S.2d 762
(App. Div. 2001).
There is some evidence that the plaintiff suffered lingering physical
limitations as a result of the herniated discs. Dr. Enrique Hernandez,
one of the plaintiff's treating physicians, concluded in December 2000,
in an unsworn report that is properly before the Court because it was
submitted by the defendant, that the plaintiff was experiencing
thirty-percent decreased range of motion of the cervical and lumbar
spine. However, a physician's report based on examinations conducted more
than three years ago is insufficient to raise a
triable issue of fact as to whether the plaintiff suffered a serious or
permanent injury. See Thompkins v. Santos, No. 98 Civ. 4634, 1999 WL
1043966, at *5 (S.D.N.Y. Nov. 16, 1999) ("The . . . rationale for
requiring a recent examination, although not explicitly set forth by the
Appellate Division, is patently obvious. . . . [T]he absence of proof of a
recent medical examination leaves an important evidentiary vacuum in a
plaintiff's opposition to a motion for summary judgment, where the
plaintiff is claiming some form of permanent or significant injury."
(quoting Troutovski v. Sitnir, 687 N.Y.S.2d 534, 535 (N.Y. Civ. Ct. 1999)
(collecting cases)); McKinney v. Lane, 733 N.Y.S.2d 456, 457 (App. Div.
2001) (noting that projections of permanent limitations based on
examinations of plaintiff conducted three years before summary judgment
motion "have no probative value in the absence of a recent examination");
Ocasio v. Henry, 714 N.Y.S.2d 139, 140 (App. Div. 2000) (finding that
plaintiff failed to raise triable issue of fact by submitting
chiropractor's report that was not based on recent examination and not
based on objective medical findings); Bidetto v. Williams, 713 N.Y.S.2d 764,
765 (App. Div. 2000) (finding treating physician's projections of
plaintiff's permanent limitations insufficient as a matter of law where
physician last saw plaintiff more than two years before trial); Grossman,
707 N.Y.S.2d at 236 (noting that to raise triable issue of fact
plaintiff must submit objective evidence of injury and "these verified
objective medical findings must be based on a recent examination of the
The plaintiff's claim of serious injury is further undermined by the
fact that there is a significant gap in his medical treatment that he has
not adequately explained. The plaintiff conceded at his deposition that
he did not receive any medical treatment between June 2000 and May or
June 2002 for the injuries he allegedly sustained in the accident. (Ebewo
Dep. at 87.) May 2002 was coincidentally the month that the plaintiff
filed this lawsuit claiming injuries. The plaintiff submits that he was
using medication to assuage the pain and other symptoms of his injury.
(Letter of Vincent I. Eke-Nweke to the Court dated July 16, 2003, at 2.)
However, the Appellate Division routinely considers gaps in plaintiffs'
visits to their doctors in concluding that plaintiffs have not raised
triable issues of fact as to the existence of a serious injury and that
summary judgment dismissing the complaint is warranted. See Nixon v.
Muntaz, 766 N.Y.S.2d 593, 594 (App. Div. 2003); Rossi v. Dwyer,
733 N.Y.S.2d 491, 492 (App. Div. 2001); Betheil-Spitz v. Linares,
715 N.Y.S.2d 435, 436 (App. Div. 2000); Graves v. Liu, 710 N.Y.S.2d 113,
114 (App. Div. 2000); Medina v. Zalmen Reis & Assocs., Inc.,
658 N.Y.S.2d 36, 37 (App. Div. 1997).
The plaintiff submitted the sworn report of Dr. Gonzolo C. Robles, Jr.
Dr. Robles concluded that the plaintiff was still suffering from neck and
back pain as a result of reduced range of motion and as a result of the
herniated discs disclosed on the plaintiff's December 1999 MRI report.
Dr. Robles concluded that the plaintiff's condition is chronic, permanent
and partially disabling in nature. Such an affidavit, if admissible,
would raise an issue of fact and preclude summary judgment. See Rosario
v. Universal Truck & Trailer Serv., 770 N.Y.S.2d 67, 69 (App. Div.
2003); Gonzalez v. Vasquez, 754 N.Y.S.2d 7, 7-8 (App. Div. 2003).
The defendant contends that Dr. Robles' affidavit is inadmissible
because it is an affidavit from an expert witness who was not previously
disclosed in accordance with Federal Rule of Civil Procedure 26(a)(2).
See Fed.R.Civ.P. 37(c)(1). Rule 26(a)(2) requires parties to disclose the
identities of expert witnesses "at the times and in the sequence directed
by the court." Fed.R.Civ.P. 26(a)(2)(C). By an order dated May 16, 2003,
Magistrate Judge Maas directed that all expert discovery be concluded by
June 12, 2003. (Order dated May 16, 2003 attached as Ex. H to Ray Aff.)
The defendant filed this motion for summary judgment on June 19, 2003.
After the motion was filed, the plaintiff was examined by Dr. Robles on
July 2, 2003.
The plaintiff contends that Dr. Robles' affidavit is admissible because
Dr. Robles is one of his treating physicians and therefore did not have
to be disclosed as an expert under Rule 26(a)(2). See Letter of Vincent
I. Eke-Nweke to the Court dated July 16, 2003; see also Thompkins, 1999 WL
1043966, at *7 n.5 ("[T]reating physicians have consistently been held
not to be experts within the meaning of Fed.R.Civ.P. 26(a)(2).")
(collecting cases). However, Dr. Robles' affidavit makes clear that he
did not have an ongoing relationship with the plaintiff as a treating
physician. Dr. Robles states in his affidavit that his findings are based
on an examination of the plaintiff on July 2, 2003 and on the reports of
other physicians who had previously examined the plaintiff. (Robles Aff.
¶¶ 2-3.) There is no indication that Dr. Robles had ever examined the
plaintiff before, and Dr. Robles is not listed anywhere in the record
before the Court as one of the plaintiff's treating physicians. Indeed,
in response to an order by the Magistrate Judge, the plaintiff was
required to answer an interrogatory that listed his treating physicians
and he did not list Dr. Robles. (Pl. Resp. to Def. First Set of Interr.
dated Apr. 9, 2003 attached in Ex. C to Ray Aff.) Therefore, Dr. Robles
should have been disclosed as an expert witness if the plaintiff planned
Dr. Robles' affidavit to support his opposition to the defendant's
motion for summary judgment.*fn1
Federal Rule of Civil Procedure 37(c)(1) provides in relevant part that
"[a] party that without substantial justification fails to disclose
information required by Rule 26(a) . . . is not, unless such failure is
harmless, permitted to use as evidence at a trial, at a hearing, or on a
motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1).
The purpose of the rule is to prevent the practice of "sandbagging" an
opposing party with new evidence. Ventra v. United States,
121 F. Supp.2d 326, 332 (S.D.N.Y. 2000); Johnson Elec. N. Am. v. Mabuchi
Motor Am. Corp., 77 F. Supp.2d 446, 458 (S.D.N.Y. 1999). Courts in this
Circuit recognize that preclusion of evidence pursuant to Rule 37(c)(1)
is a drastic remedy and should be exercised with discretion and caution.
Ventra, 121 F. Supp.2d at 332; Johnson Elec., 77 F. Supp.2d at 458.
The plaintiff has provided no reasonable justification for his failure
to disclose the testimony of Dr. Robles. As noted above, the plaintiff's
claim that Dr. Robles is one of his treating physicians is not supported
by Dr. Robles' own affidavit, by the plaintiff's prior representations,
or by any evidence. The plaintiff had it within his power to collect all
the evidence required to prevail on his claim before the close of
discovery and before the defendant had filed his motion for summary
judgment, but he did not do so. Instead, he submitted to an examination
by Dr. Robles only after the motion for summary judgment had been filed,
and Dr. Robles' affidavit was disclosed to the defendant only in the
plaintiff's opposition papers on this motion. The plaintiff's delay in
seeking an examination by Dr. Robles suggests that the examination came
about as an effort to refute the defendant's prima facie showing that the
plaintiff had not suffered a serious or permanent
injury. That delay prejudiced the defendant, because the defendant made
his motion based on what he believed was the strength of the plaintiff's
case at the close of discovery. This is the type of "sandbagging" of
adversaries that Rule 37(c)(1) was designed to prevent, and therefore
Dr. Roble's affidavit will be excluded from consideration.*fn3 See
Ventra, 121 F. Supp.2d at 331-32; Fed. Deposit Ins. Corp. v. Wrapwell
Corp., No. 93 Civ. 859, 2000 WL 1576889, at *2-*3 (S.D.N.Y. Oct. 23,
2000); R.C.M. Executive Gallery Corp. v. Rols Capital Co., No. 93 Civ.
8571, 1996 WL 30457, at *l-*2 (S.D.N.Y. Jan. 25 1996).
Preclusion of Dr. Robles' affidavit prevents the plaintiff from raising
an issue of triable fact and will require that the action be dismissed.
However, in this case that result is not unfair to the plaintiff. As
Judge Martin concluded in 251 CPW Hous. Ltd. v. Paragon Cable Manhattan,
No. 93 Civ. 944, 1995 WL
70675 (S.D.N.Y. Feb. 21, 1995), in excluding the plaintiffs' expert
testimony pursuant to 37(c)(1) despite the fact that it would require
dismissal of the plaintiffs' complaint:
This result is not unfair to plaintiffs. This is not a
complex case with changing issues, or in which
theories and litigation strategy must be allowed to
develop as evidence is discovered and the case
progresses toward trial. It is a simple negligence
case. The issues are straightforward and the facts
that plaintiffs must prove have been clear from the
time that they filed their Amended Complaint.
Plaintiffs have an obligation to gather the evidence
necessary to prove their case, and upon defendant's
proper discovery requests, to make that evidence
available to defendant, on or before the close of
discovery. . . . As the Supreme Court stated in
Hickman v. Taylor, 329 U.S. 495, . . . "mutual
knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that
end, a party may compel the other party to disgorge
whatever facts he has in his possession . . . thus
reducing the possibility of surprise." . . .
Plaintiffs' counsel apparently has not taken seriously
in this case the obligations imposed by the Federal
Rules and this Court.
Id. at *4-*5. The same considerations apply in this case. The plaintiff
knew the evidence he would require in order to prevail on his claim and
in order to survive a motion for summary judgment. It was unfair to the
defendant for the plaintiff to cobble together the evidence needed to
oppose summary judgment only after the date specified by Magistrate Judge
Maas for the close of expert discovery, and only after the defendant had
submitted his motion for summary judgment.*fn4
The plaintiff's assertions, both in his deposition testimony and in his
affidavit submitted in connection with this motion, that he continues to
suffer from back pain, various physical limitations, and decreased sexual
activity with his wife are insufficient to raise a triable issue of fact,
because they are unsubstantiated by objective medical evidence. See
Abrahamson v. Premier Car Rental of Smithtown, 691 N.Y.S.2d 83, 84
(App. Div. 1999) ("Although the plaintiff submitted his own affidavit and
pretrial testimony indicating that he occasionally suffers from back pain
and that he was unable to have sexual relations with his wife or to care
for his children for three months after the accident, he failed to submit
any credible medical or other evidence to support these subjective
There is also no evidence in the record that would permit a reasonable
jury to conclude that, as a result of the alleged accident, the plaintiff
was prevented from performing "substantially all of the material acts
which constitute [his] usual and customary daily activities" for at least
90 of the 180 days following the alleged accident. N.Y. Ins. L. §
5102(d). Indeed, the plaintiff was able to return to work one month after
the alleged accident occurred.
Because the plaintiff has failed to raise a triable issue of fact in
opposition to the defendant's prima facie showing that the plaintiff has
not suffered a "serious injury" within
the meaning of § 5102(d), the defendant's motion for summary judgment
must be granted.
For the reasons explained above, the defendant's motion for summary
judgment is granted. The Clerk is directed to enter Judgment dismissing
the Complaint and closing this case.