United States District Court, E.D. New York
August 10, 2004.
LOUIS R. SCOTTO and FRANCESCA A. SCOTTO Plaintiffs,
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).
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,
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.
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. E at 1). Dr. Weiland did not find
any evidence of any lateralizing neurological deficits at that
time. He believed that Scotto could perform the activities of
daily living and continue gainful employment. Id. at 1.
By these reports, defendants met their initial burden of
establishing that Scotto has not sustained a "serious injury"
within the meaning of § 5102(d). According to the medical reports
of Drs. Katz and Weiland, Scotto did not suffer a permanent
injury or a limitation of movement in the back or neck. Thus, the
question comes down to whether he has shown that a genuine issue
of material fact exists. In determining whether a genuine issue
of material fact exists, a court must examine the evidence in the
light most favorable to, and draw all inferences in favor of, the
non-moving party. Lucente v. IBM, 310 F.3d 243, 253 (2d Cir.
2002) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). Thus, unless the plaintiffs
present a genuine issue of material fact, based on competent
medical evidence, summary judgment will be granted. Tarnopolsky
v. Sanchez, No. 01-CV-5020, 2002 U.S. Dist. Lexis 20588, at *4
(E.D.N.Y. September 27, 2002).
Though Scotto complains of headaches and eye pain, a
plaintiff's subjective experience of pain cannot, by itself, form
the basis of a "serious" injury. See McLoyrd v. Pennypacker,
178 A.D.2d 227, 577 N.Y.S.2d 272, 273 (1st Dep't 1991), appeal
denied, 79 N.Y.2d 754, 581 N.Y.S.2d 665 (1992).
Competent Medical Evidence
Attached as exhibits to the plaintiffs' affidavit in opposition
to the motion for summary judgment are the medical reports of Dr.
Mario Funicelli, a chiropractor (Scotto Affirmation, Ex. A
(Chiropractic Aff.)), Dr. Robert Diamond, who performed an MRI on
Scotto (Scotto Supplemental Affirmation, Ex. A), Dr. Gary Kaplan,
the attending doctor at Staten Island Hospital during the day of
the accident (Scotto Affirmation, Ex. A (Report of Dr. Kaplan,
1/3/00)), Dr. David Zelefesky, an orthopedist (Scotto
Affirmation, Ex. A (Report of Dr. Zelefsky, 1/7/00)), Dr. Michael
M. Katz, a radiologist (Scotto Affirmation, Ex. A (Report of Dr.
Katz, 1/19/00)), Dr. Robert Caraccino, Scotto's primary care
doctor (Scotto Affirmation, Ex. A (Report of Dr. Caraccino,
1/4/00)), and Dr. Igor Stiler, a neurologist (Scotto Affirmation,
Ex. A (Report of Dr. Stiler, 1/14/00)).
Competent medical evidence tendered as proof of "serious
injury" must be submitted in admissible form. See Grasso v.
Angerami, 79 N.Y.2d 813, 813, 580 N.Y.S.2d 178, 179 (1991)
(holding that when plaintiff submits proof of "serious injury" in
inadmissible form, "an acceptable excuse for the deficiency [must
be] offered"); Williams v. Ritchie, 139 F. Supp.2d 330, 334
(E.D.N.Y. 2001) ("A plaintiff may defeat summary judgment through
admissible evidence in the form of sworn affidavits by
physicians") (citing Morrone v. McJunkin, No. 98-2163, 1998
U.S. Dist. LEXIS 19506, at *5-6 (S.D.N.Y. Dec. 14, 1998) (citing
Bonsu v. Metropolitan Suburban Bus Auth., 202 A.D.2d 538,
610 N.Y.S.2d 813, 813-14 (2d Dep't 1994); McLoyrd v. Pennypacker,
178 A.D.2d 227, 577 N.Y.S.2d 272, 273 (1st Dep't 1991))); Smalls
v. Izzo, No. 94-4047, 1996 U.S. Dist. LEXIS 9621, *7 (S.D.N.Y.
July 10, 1996) ("[A] plaintiff relying solely on unsworn medical
reports of physicians will fail to establish a prima facie case
of serious injury within the meaning of [New York] Insurance
Law") (citing Maliadis v. Giaconnelli, 191 A.D.2d 682,
595 N.Y.S.2d 540 (2d Dep't 1993)).*fn4 See also Fed.R. Civ.
P. 56(e) ("The adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.").
Dr. Funicelli's and Dr. Diamond's findings are in the form of
affidavits, and thus are admissible.*fn5 However, defendants
contend Dr. Funicelli's affidavit fails to raise a triable issue
of fact because he was not aware of Scotto's partial
thyroidectomy and a prior work related injury in which Scotto
injured his lower back (Moraldo Reply Mem. Of Law at 5). Thus,
defendants contend, it is mere speculation that his injuries are
causally related to the accident. Franchini v. Palmieri,
1 N.Y.3d 536, 775 N.Y.S.2d 232 (2003) (holding that plaintiff's
doctor's report was insufficient to defeat summary judgment as he
failed to adequately address plaintiff's preexisting back
condition and other medical problems). However, in Franchini,
the evidence did not raise a triable issue of fact as the
physician also failed to set forth the objective medical basis
for his conclusions. Id. Furthermore, in Franchini, the
plaintiff's preexisting injury was the result of an assault that
occurred only seven months prior to the car accident. Franchini
v. Palmieri, 307 A.D.2d 1056, 1057, 763 N.Y.S.2d 381, 382 (3d
Dep't 2003), aff'd 1 N.Y.3d 536, 775 N.Y.S.2d 232 (2003).
However, Scotto's original back injury occurred about twenty
years ago and he testified at the deposition that it had resolved
itself.*fn6 (Moraldo Affirmation, Ex. F at 74).
Additionally, Scotto's original back injury was to the lower
back; Scotto's current injuries are to the cervical spine (neck
area).*fn7 Furthermore, while Scotto's thyroidectomy
involved an operation on the neck, the injury he suffered to the
neck as a result of the car accident is different from a thyroid
disease. Thus, it is not mere speculation that Scotto's claimed
injuries are causally related to the accident.
Defendants also contest Dr. Funicelli's findings because he
merely mentioned an MRI report without testifying as to the
findings in the report. (Moraldo Reply Mem. Of Law at 7).
However, Dr. Funicelli reviewed the MRIs and testified to their
findings. (Scotto Affirmation, Ex. B at 3).*fn8 As
defendants themselves argue, an expert's conclusion based on a
review of MRI films and reports can provide objective evidence of
a serious injury. (Moraldo Reply Mem. of Law at 7) (citing Nitti
v. Clerico, 98 N.Y.2d 345, 358, 764 N.Y.S.2d 865, 873 (2002)).
Furthermore, Dr. Funicelli did not rely solely on the MRIs for
his diagnosis. His conclusions are also based on measurements
from the Orthoranger Device. (Scotto Affirmation, Ex. A
(Chiropractic Aff.) ¶ 3). Thus, there is an objective basis to
Dr. Funicelli's conclusion. See Toure v. Avis Rent A Car
Systems, Inc., 98 N.Y.2d 345, 350, 764 N.Y.S.2d 865, 867 (2002)
(holding that objective proof of a plaintiff's injury is needed
in order to satisfy the statutory serious injury
In addition, defendants contest Dr. Funicelli's findings on the
ground that neither Dr. Funicelli nor Scotto provided an
explanation for the gap in treatment of almost three years.
(Moraldo Supplemental Reply Mem. of Law at 4) (citing Sibrizzi
v. Davis, 7 A.D.3d 691, 776 N.Y.S.2d 843, 2004 N.Y. Slip Op.
04002 (2d Dep't May 17, 2004) (dismissing plaintiff's claim for
failure to offer a satisfactory explanation for the
two-and-a-half year gap in treatment)). Dr. Funicelli treated
Scotto from January 6, 2000 until June 8, 2000. He re-examined
Scotto on September 11, 2003. (Scotto Affirmation, Ex. A
(Chiropractic Aff.) ¶ 3). Dr. Funicelli originally diagnosed a
permanent partial disability and noted that continued therapy and
treatment were essential and that the prognosis for a full
recovery was poor. (Scotto Affirmation, Ex. A (Dr. Funicelli
Report, 08/25/00), at 4)). However, Scotto presented a
satisfactory reason for the gap in treatment, explaining that the
gap was a result of the fact that Scotto's No-Fault benefits were
denied and he was unable to pay out of pocket.*fn10 (Scotto
Affirmation ¶ 8).
Thus, defendants have failed to discredit the reports of Drs.
Funicelli and Diamond as inadmissible. Since Drs. Funicelli's and
Diamond's reports are admissible and the summary judgment motion
can be decided solely on the basis of their reports, it is
unnecessary to rule on the admissibility of the other medical
On February 15, 2000, Dr. Diamond performed an MRI on Scotto.
He diagnosed "C2/3 through C5/5 posterior disc bulge with
impression on the ventral subarachnoid space. C6/7 posterior disc
herniation with foraminal narrowing and impression the ventral
subarachonid space. Left maxillary sinusitis." (Scotto
Supplemental Affirmation, Ex. A).
Dr. Funicelli's examinations of Scotto's cervical spine
revealed the following:
Patient Patient Normal Percent
Results Results Finding Limitation
(1/6/00) (9/11/03) (9/11/03)
Flexion 40 degrees 60-65 45 degrees None
Extension 20 degrees 24 degrees 45 degrees 46%
Right 25 degrees 30 degrees 45 degrees 33%
Left lateral 15 degrees 40 degrees 45 degrees 11%
Right rotation 65 degrees 40 degrees 80 degrees 50%
Left rotation 65 degrees 50 degrees 80 degrees 37.5%
(Scotto Affirmation, Ex. A (Chiropractic Aff.) ¶ 6).
Furthermore, Dr. Funicelli observed that x-rays taken on
September 11, 2003, revealed a "loss of the normal cervical
lordotic curvature with minimal to moderate loss of disc spacing
at C5-6 and evidence of end plate sclerosis." (Scotto
Affirmation, Ex. A (Chiropractic Aff.) ¶ 3).
Dr. Funicelli diagnosed Scotto to have all of the following
permanent medical conditions resulting from the accident of
January 3, 2000:
1. C5-C6 posterior disc herniation with compression
of subarachnoid space;
2. C2-C3, C3-C4, C4-C5, C5-C6 disc bulge;
3. cervical hyperextension/flexion injury;
4. cervical strain;
5. cervical radiculopathy;
6. cervico-cranial syndrome;
7. brachial neuritis/radiculitis;
8. internal derangement of the left shoulder;
9. supraspinatus tendonitis;
10. thoracic sprain;
11. internal derangement of the lumbar spine;
12. lumbar spine syndrome;
13. subluxation at L5-S1;
14. lumbar radiculopathy;
15. chronic cervical disc syndrome; and
16. subluxation at C5-6, C6-7.
Id. ¶ 7.
The four categories of "serious injury" by which plaintiffs
contend that Scotto is entitled to recovery under New York's
No-Fault Law are those referred to as types 6 through 9. A type 6
injury is the "permanent loss of use of a body organ, member,
function or system" ("type 6 injury"). N.Y. Ins. Law § 5102(d)
(Consol. 2004). The "permanent loss" must be a total loss of use.
Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295, 297,
727 N.Y.S.2d 378, 379 (2001). This type of injury does not involve a
partial loss of use. Id. at 299, 727 N.Y.S.2d at 381. While
Scotto contends that he suffered a type 6 injury, none of
Scotto's claimed injuries involve a permanent total loss of use.
Other than claiming that Scotto suffered a type 6 injury,
plaintiffs do not claim or present any evidence that Scotto
suffered a permanent total loss of use.
Plaintiffs also claim that Scotto suffered a serious injury as
a result of the "permanent consequential limitation of use of a
body organ or member" ("type 7 injury") and "significant
limitation of use of a body function or system" ("type 8
injury"). N.Y. Ins. Law § 5102(d) (Consol. 2004). "Whether a
limitation of use is `consequential' or `significant' (i.e.,
important)" under the statute "relates to medical significance
and involves a comparative determination of the degree or
qualitative nature of an injury based on the normal function and
use of the body part." Dufel, 84 N.Y.2d at 798, 622 N.Y.S.2d at
902. Furthermore, a "minor, mild or slight limitation of use" is
insignificant within the meaning of the statute. Toure, 98
N.Y.2d at 353, 764 N.Y.S.2d. at 870. Although a type 7 injury
requires permanence, it is not necessary that a type 8 injury be
permanent. Preston v. Young, 239 A.D.2d 729, 732, 657 N.Y.S.2d 499,
501 (3d Dep't 1997) (holding that in finding a type 8
injury, the limitation in use does not have to be permanent).
Though there are cases that hold that the back and neck are
considered a function or system, and as such, cannot be
classified as a type 7 injury, Daviero v. Johnson, 110 Misc.2d 381,
387, 441 N.Y.S.2d 895, 899 (Sup.Ct. Schenectady County
1981), aff'd, 88 A.D.2d 732, 451 N.Y.S.2d 858 (3d Dep't 1982);
Khouzam v. Zalesky, No. 93-CV-6360, 1996 U.S. Dist. Lexis 2125,
at *15 (S.D.N.Y. February 26, 1996), in Toure, the New York
Court of Appeals recognized that injuries to the back or neck
could qualify as an injury in this category. 98 N.Y.2d at 353.
Accordingly, classification of back or neck injuries as type 7
injuries is appropriate.
In order to demonstrate a type 7 or type 8 injury, it is not
necessary to ascribe a "specific percentage to the loss of range
of motion," but it is sufficient to describe the "qualitative
nature of [the] plaintiff's limitations based on the normal
function, purpose and use of the body part." Toure, 98 N.Y.2d
at 353, 764 N.Y.S.2d at 869. However, where medical records
indicate specific measurements of limited movement, courts have
generally found a triable issue as to whether there is a
significant limitation. Thus, in Licari a case involving a
limitation of movement in the back and neck, an order for summary
judgment was affirmed because the plaintiff failed to offer
evidence "as to the extent of the limitation of movement." 57
N.Y.2d at 239, 455 N.Y.S.2d at 575 (original emphasis). See also
Cenat v. Cutler, 251 A.d.2d 362, 672 N.Y.S.2d 812 (2d Dep't
1998) (denying summary judgment for a type 8 injury since the
affidavit specified the degree to which the plaintiff's movement
was restricted in his cervical spine). Similarly, in Lopez v.
Senatore, where the "treating physician, in an affidavit
supported by exhibits, has set forth the injuries and course of
treatment, identified a limitation of movement of the neck of
only 10 degrees to the right or left, and on that predicate
expressed the opinion that there was a significant limitation of
use of a described body function or system, such evidence was
sufficient for the denial of summary judgment" for a type 8
injury. 65 N.Y.2d 1017, 1020, 494 N.Y.S.2d 101, 102 (1985).
Though, in Lopez the court affirmed the lower court's granting
of summary judgment on the type 7 injury, due to insufficient
proof that the injury was permanent, id. at 1018, 494 N.Y.S.2d
at 102, the principle articulated in Lopez by which the court
finds a question of fact for a type 8 injury based on quantified
measurements of limited movement should also apply to a type 7
There seems to be disagreement among New York courts as to
whether a minimum percentage loss of range of motion is required
to defeat summary judgment or whether any stated percentage loss
is sufficient if one only ascribes a specific percentage to the
loss of range of motion. In Paolini v. Sienkiewicz, a 6%
limitation of movement in the spine was not considered a type 7
or type 8 injury and summary judgment was granted on those
claims. 262 A.D.2d 1020, 1020, 691 N.Y.S.2d 836, 837 (4th Dep't
1999); see also Waldman v. Dong Kook Chang, 175 A.D.2d 204,
204, 572 N.Y.S.2d 79, 80 (2d Dep't 1991) (holding that a 15%
limitation in the range of motion of the cervical spine is not a
type 7 injury and summary judgment is granted); Bandoian v.
Bernstein, 254 A.D.2d 205, 205, 679 N.Y.S.2d 123, 124 (1st Dep't
1998) (holding that a 10% restriction of extension and/or
rotation of the cervical spine is not a type 7 injury and summary
judgment is granted); Monette v. Keller, 281 A.D.2d 523, 524,
721 N.Y.S.2d 839, 839 (2d Dep't 2001) (holding that a 2% loss of
cervical rotation is not a type 8 injury and summary judgment is
However, in Leahey v. Fitzgerald, a summary judgment motion
was defeated for a type 7 injury as the doctor "provided numeric
percentages of plaintiff's loss of motion." 1 A.D.3d 924, 925,
768 N.Y.S.2d 55, 56 (4th Dep't 2003); see also Pech v. Yael Taxi
Corp., 303 A.D.2d 733, 733, 758 N.Y.S.2d 110, 110 (2d Dep't
2003) (holding that a showing of quantified restrictions in the
range of motion of the cervical spine defeats a motion for
summary judgment for type 7 injury).
This issue need not be resolved in the instant case, as
plaintiffs have made a prima facie showing that Scotto suffered
from both type 7 and type 8 injuries. Dr. Funicelli assigned a
quantitative percentage to the loss of range of motion in
plaintiff's cervical spine. Based on the examination on September
11, 2003, the percent limitation of motion in the extension
(46%), right lateral flexion (33%), right rotation (50%), and
left rotation (37.5%) (Scotto Affirmation, Ex. B at 6) could be
considered as a "consequential" or "significant" injury by New
York courts. See Grullon v. Chang Ok Chu, 240 A.D.2d 367,
657 N.Y.S.2d 776 (2d Dep't 1997) (holding that a 35 to 40 degree
limitation of movement in the lumbosacral spine is prima facie
proof of serious injury); Bates v. Peeples, 171 A.D.2d 635,
635, 566 N.Y.S.2d 659, 660 (2d Dep't 1991) (holding that
"restricted flexion 40 degrees, extension 10 degrees, lateral
bending 10 degrees" in the cervical spine raises an issue of fact
as to whether the plaintiff had suffered a "serious injury");
see also Durham v. N.Y. East Travel, Inc., 2 A.D.3d 1113, 1114,
769 N.Y.S.2d 324, 325 (3d Dep't 2003) (holding that a 50%
restriction of the normal range of motion in the neck defeats a
motion for summary judgment for a type 7 and type 8 injury);
Brewer v. Maines, 309 A.D.2d 1088, 1089, 766 N.Y.S.2d 230, 230
(3d Dep't 2003) (holding that a 30% loss of use in the
lumbosacral spine defeats a motion for summary judgment for a
type 7 or type 8 injury); Swenning v. Moore, 140 A.D.2d 428,
429, 528 N.Y.S.2d 130, 131 (2d Dep't 1998) (holding that when
right and left cervical rotation are diminished approximately
30%, summary judgment is denied for a type 8 injury); Livai v.
Amoroso, 239 A.D.2d 565, 658 N.Y.S.2d 973 (2d Dep't 1997)
(holding that a 20% restriction in the cervical spine and
cervical radiculopathy is a type 8 injury and summary judgment is
denied); Pagan v. Gondola Cab Corp., 235 A.D.2d 251, 251,
652 N.Y.S.2d 277, 278 (1st Dep't 1997) (holding that a 20%
restriction in the cervical spine is a type 8 injury and summary
judgment is denied).
In addition, Dr. Funicelli diagnosed disc bulges (Scotto
Affirmation, Ex. A (Chiropractic Aff.) ¶ 7). Although disc bulges
by themselves are not a "consequential" or "significant" injury
as a matter of law, a quantitative or comparative determination
of the degree of injury combined with a diagnosis of bulging or
herniated discs is sufficient to defeat a motion for summary
judgment. See Toure, 98 N.Y.2d at 353, 764 N.Y.S.2d at 869
(holding that bulging or herniated discs by themselves, does not
constitute a serious injury); see also Manzano v. O'neil,
98 N.Y.2d 345, 355, 764 N.Y.S.2d 865, 871 (2002) (holding that a
diagnosis of herniated discs and description of the qualitative
nature of the limitations based on the normal function, purpose,
and use of the body parts is a serious injury). When combined
with Dr. Funicelli's diagnosis of disc bulge, his quantitative
measurement of limitation of motion is sufficient to raise a
genuine issue of material fact.
Dr. Funicelli's diagnosis of disc bulge and a limitation of
movement in the cervical spine differs from Drs. Katz's and
Weiland's diagnosis of cervical strain resolved. (Moraldo
Affirmation, Ex. D at 1, Ex. E at 1). Thus, due to the questions
of fact raised by the chiropractor's affidavit and his conclusion
that the injuries are permanent and continued therapy and
treatment are essential, summary judgment for type 7 and type 8
injuries is denied.
Finally, plaintiffs claim that Scotto suffered a serious injury
as a result of "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"
("type 9 injury"). N.Y. Ins. Law § 5102(d) (Consol. 2004).
"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, 57
N.Y.2d at 236, 455 N.Y.S.2d at 573; see also Szabo v. XYZ,
267 A.D.2d 134,135, 700 N.Y.S.2d 179, 179 (1st Dep't 1999) (holding
that being able to perform one's job with minor limitations does
not demonstrate a serious injury); Figuerora v. Torgerson,
147 A.D.2d 883, 885, 538 N.Y.S.2d 108, 110 (3d Dep't 1989) (holding
that plaintiff's "return to full-time employment within 90 days
of the accident confirms that [plaintiff's] daily activities were
not so curtailed as to demonstrate a `serious injury'").
Scotto missed approximately three weeks of work as a result of
the accident, and upon returning to work was able to maintain his
daily routine as a social worker, though he was unable to turn
his neck. (Moraldo Affirmation, Ex. F at 12-14). He also contends
that his household and sporting activities were curtailed as a
result of the accident, but has submitted no evidence to support
that contention. Id. at 80-83. In fact, Scotto himself admits
that his recreational sporting activities (running and weight
lifting) were sporadic, and were not part of his usual
activities. Scotto would do it "for a few months, then slack off,
and then do it for a few months." (Moraldo Affirmation, Ex. F at
83). Scotto was impeded slightly, but was able to perform
substantially all of his activities. As such, he is unable to
claim a type 9 injury.
In sum, plaintiffs have presented sufficient evidence to
dispute the contention that Scotto has not suffered a "serious
injury." Although defendants' doctors concluded that Scotto's
back problems have resolved themselves, plaintiffs' doctors found
that Scotto suffers from a qualified and permanent limitation of
motion in the cervical spine, as well as disc bulges and disc
There are outstanding questions of material fact that cannot be
settled upon this motion for summary judgment. Accordingly,
defendants' motion for summary judgment is denied.