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SCOTTO v. MORALDO

August 10, 2004.

LOUIS R. SCOTTO and FRANCESCA A. SCOTTO Plaintiffs,
v.
MICHAEL MORALDO and DONNA M. MORALDO Defendants.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM AND ORDER

Plaintiffs Louis R. Scotto ("Scotto") and Francesca A. Scotto (together "plaintiffs") brought this action pursuant to the Insurance Law of the State of New York (the New York No-Fault law). Louis Scotto contends that the various injuries that he suffered in a car accident with Michael Moraldo and Donna M. Moraldo ("defendants") are "serious" as defined by N.Y. Ins. Law. § 5102(d) (Consol. 2004) ("§ 5102(d)"). Louis Scotto argues that as a result of his "serious injury" he was damaged in the sum of $1,000,000. (Moraldo Affirmation, Ex. A at 14). Francesca Scotto argues that as result of Louis Scotto's serious injury, she was deprived of the services, society and companionship of her spouse. She seeks damages in the sum of $150,000. Id. at 16. In their motion for summary judgment pursuant to Fed.R. Civ. P. 56(c), defendants contend that Louis Scotto's alleged injuries do not qualify as "serious" as defined by § 5102(d).

Background

  On January 3, 2000, plaintiffs were involved in an automobile accident with defendants. (Moraldo Affirmation, Ex. A ¶ 9). Louis Scotto testified that he was stopped at the light between Midland Avenue and Father Capodanno Boulevard in Staten Island, N.Y. (Moraldo Affirmation, Ex. F at 25).*fn1 There were two or three cars in front of him. He was at a complete stop for a couple of seconds, but then defendants' vehicle hit Scotto's vehicle from behind. Id. at 32. The rear impact moved Scotto's car straight ahead into the car in front of him. As a result, there were two impacts in the crash. At the time, Scotto was wearing a seatbelt; however, the airbags did not deploy. Id. at 36. As a result of both impacts, Scotto hit the seatbelt and the seat with his neck, back, and chest. Id. at 37. Scotto was able to get out of the car by himself, but suffered from pain in his neck, back, both shoulders, and in his left leg. Id. at 38-9.

  About an hour after the accident, id. at 44, Scotto went to Staten Island Hospital and was seen by Dr. Gary Kaplan (Scotto Affirmation, Ex. A (Report of Dr. Kaplan, 1/3/00)). Scotto complained of head and shoulder pain. However, he did not complain of any back pain. Neurovascular status was found to be grossly intact at the time. No focal motor weakness was identified. Id. at 1. Scotto was x-rayed and was diagnosed with whiplash. He was given Advil and told to follow up with his medical doctor. (Moraldo Affirmation, Ex. F at 51).

  Scotto was then treated by Dr. Caraccino.*fn2 (Scotto Affirmation, Ex. A (Report of Dr. Carracino, 1/4/00); Moraldo Affirmation, Ex. F at 53). Scotto complained to the doctor about pain in his neck, shoulders and upper back. (Moraldo Affirmation, Ex. F at 54). Dr. Caraccino diagnosed whiplash injury. (Scotto Affirmation, Ex. A (Report of Dr. Carraacino, 1/4/00)). Additionally, a day or two after the accident Scotto began to suffer from headaches and eye pain. (Moraldo Affirmation, Ex. F at 54). Dr. Caraccino only gave Scotto an anti-inflammatory and did not take any x-rays nor advise Scotto to undergo surgery.

  At the time of his deposition (October 24, 2002), Scotto took Advil two or three times a week because of his pain. Id. at 71. At that time, Scotto claimed that since the accident, he had experienced daily pain and limitation of movement in his neck and upper back, which prevented him from performing his usual and ordinary activities. These activities included bending, lifting, twisting, coughing or sneezing. (Scotto Aff. ¶ 4). He was limited in his ability to stand for more than 20 minutes, to sit for more than 45-60 minutes, and to walk more than a few blocks. Id. ¶ 5. Furthermore, Scotto was unable to drive for more than one hour at a time. Id. ¶ 8. Scotto also experienced headaches, id. ¶ 7, and was unable to play sports or run for more than 20 minutes at a time, id. ¶ 6. Scotto also did not do any housework and did not have sexual intercourse*fn3 for at least three months after the accident. (Moraldo Affirmation, Ex. F at 79, 80).

  Since 1978, Scotto has worked for South Beach Psychiatric Center. He is a social worker and the director of the day hospital. Id. at 9-10. Scotto supervises the staff (between 10-15 people) responsible for therapy and for running groups for the clients. During his job, he is mostly seated. However, as a result of the car accident, Scotto missed a week of work and would later miss between 10 to 15 days for medical treatment. Id. at 12, 14. When Scotto returned to work, he was only limited in that he could not turn his neck to talk to people. Id. at 13.

  (1)

  New York's No-Fault Law

 
In order to recover for non-economic loss in a motor vehicle accident under New York
  Law, the injury must be defined as "serious." N.Y. Ins. Law. § 5104 (Consol. 2004). "Serious injury" is defined as a personal injury that results in:
 
death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
N.Y. Ins. Law § 5102(d) (Consol. 2004). Scotto contends that his bodily injuries are "serious" under the last four categories of § 5102(d) (Scotto Affirmation ¶ 1).

  The legislative intent of New York's No-Fault law was to "significantly reduce the number of automobile personal injury cases litigated in the courts," Licari v. Elliot, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 573 (1982) and to "weed out frivolous claims and limit recovery to significant injuries," Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 902 (1995).

  Defendants contend that Scotto does not suffer from a serious injury. (Moraldo Affirmation ¶ 9). Defendants rely on the sworn reports of Dr. Michael J. Katz and Dr. Edward Weiland Dr. Katz, an orthopedist, examined Scotto on October 4, 2002. (Moraldo Affirmation, Ex. D at 1). He found a full range of motion in the cervical and lumboscral spine. Id. at 2. Dr. Katz diagnosed "cervical strain-resolved" and "lumbosacral strain-resolved." Dr. Katz believed that Scotto was not disabled and was capable of all of his daily activities at the current time. Id. at 1. Dr. Weiland, a neurological consultant, examined Scotto on September 30, 2002, on which date he diagnosed "closed head trauma with subjective headache disorder," "cervical sprain/strain — resolved," and "lumbosacral sprain/strain — resolved." Id. at 3. (Moraldo Affirmation, Ex. ...


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