United States District Court, S.D. New York
June 25, 2005.
JOHN BYRNE, Plaintiff,
OESTER TRUCKING, INC. and JOSEPH CALVIN DRAKE Defendant.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION AND ORDER
This action stems from an accident that occurred on the Long
Island Expressway in July of 2002. Plaintiff John Byrne alleges
that he sustained serious injuries and damage to his property
resulting from defendant Oester Trucking, Inc.'s tractor-trailer
sideswiping plaintiff's Jeep.
B. Procedural History
John Byrne ("Byrne") filed this action in the Supreme Court,
County of New York, on February 26, 2003. The action was removed
to federal court on April 4, 2003 on the basis of diversity
Defendants Oester Trucking, Inc. ("Oester") and Joseph Calvin
Drake ("Drake") answered the complaint on August 29, 2003, and on
October 15, 2003, the matter was transferred from Judge Batts to
Presently before the court is the defendants' motion for
summary judgment, filed on August 10, 2004.
In the early afternoon of July 1, 2002, Byrne was operating his
recently purchased 2000 Jeep in the far left lane of the three
lane Long Island Expressway heading west, at about exit 21, in
Queens, New York. (Byrne Dep. at 10, 15; Drake Dep. at 7, 23).
The highway in that area is divided by a cement divider that was
approximately five feet from the far left lane. (Byrne Dep. at
21; Drake Dep. at 23).
Drake was operating a tractor-trailer owned by his employer
Oester, Pennsylvania plate number AE56489, in the center lane of
the Long Island Expressway in the same vicinity as Byrne.
(Complaint at 1; Drake Dep. at 23). Drake was on his way to make
a "pick up," having made a delivery on Long Island earlier in the
day. (Drake Dep. at 20). Traffic just prior to the time of the
accident had been "stop and go" due to construction, but had
begun to "open up," and vehicles were beginning to accelerate.
Id. at 23-24. At that point in time, according to Drake, there
were two stopped vehicles in the center lane in front of Drake's
tractor-trailer.*fn1 Id. at 25-26. The vehicle closest to
Drake's tractor-trailer was stopped in the center lane behind
another vehicle that was half in the center lane and half in the
right lane, also stopped. Id. Drake, who had accelerated to
approximately 45 mph, upon observing these two stopped vehicles
in front of him, forcefully applied his brakes and attempted to
steer the tractor-trailer to the left in order to avoid the
stopped cars in the roadway. Id. at 28-29.
Byrne, who was operating his Jeep at a rate of approximately
55-60 mph in the far left lane, was even with the trailer section
of Drake's tractor-trailer just before the accident. (Byrne Dep.
at 18-19). Upon seeing Drake's tractor-trailer change lanes from
the center lane to Byrne's lane, Byrne applied his brakes to
avoid being struck by the tractor-trailer. Id. at 23. However,
not having at any time observed Byrne's Jeep, the trailer section
of Drake's tractor-trailer collided with Byrne's Jeep when Drake
entered the left lane, forcing it up and onto the cement divider
where it struck a light pole that was situated in the center of
the divider. Id. at 24. Byrne's Jeep stopped there, with the
two driver side wheels of the Jeep on the left side of the
divider and the two passenger side wheels on the right side of
the divider. Id. at 24-26. The Jeep was leaning to the right so
that the roofline of the Jeep rested against the trailer portion
of Drake's tractor-trailer, midway down the trailer. (Byrne Dep.
at 25-26; Drake Dep. at 31). Byrne was wearing a seatbelt, which
did not tear as a consequence of the impact, and although the
Jeep was equipped with air bags, they did not deploy. (Byrne Dep.
at 27-28). Resulting from the impact or impacts, the back of
Byrne's neck and head hit the headrest. Id.
Byrne was assisted from his vehicle by emergency personnel and
transported to Elmhurst Hospital where he presented complaints of pain in his neck and
back.*fn2 (Pl.'s Rule 56.1 Stmt. ¶ 5; Def.'s Rule 56.1 Stmt.
¶ 3). Approximately ten to fourteen days later, Byrne sought
treatment from Leonard Harrison, M.D., an orthopedic doctor,
complaining of pain in his left hip and lower back, for which Dr.
Harrison prescribed physical therapy and painkillers. (Pl.'s Rule
56.1 Stmt. ¶ 14, 17). Byrne saw Dr. Harrison through September
2003. Byrne also attended physical therapy sessions approximately
seventy-eight (78) times during the period August 12, 2002
through May 21, 2003, and continued these sessions twice weekly
until October 2003. (Pl.'s Rule 56.1 Stmt. ¶ 18, 20; Def.'s Rule
56.1 Stmt. ¶ 6). In addition to the therapy sessions, Byrne
followed a home exercise regimen, which he continued to follow
through the filing of this action. (Pl.'s Rule 56.1 Stmt. ¶ 21).
Byrne visited neurologist Jerome M. Block, M.D. on August 8,
2002, complaining of low back pain and of a "pins and needles"
sensation along the outer aspect of his left thigh when standing.
Id. ¶ 27. Byrne reported that his pain increased while climbing
stairs, rolling over in bed, arising from a seated position, and
that certain movements of his left leg would cause sharp pain in
the same area. Id. Dr. Block reported that Byrne was unable to
laterally bend at the waist with the same range of motion as
would be expected in a "normal" man of Byrne's age and health,
that his ability to tilt to the left was diminished by
approximately 25-30%, that attempts to bend to the left triggered
a painful reaction in his left buttock area, and that left
straight leg raising resulted in pain at 70 out of a possible 90
degrees of elevation. Id. ¶ 28.
Byrne underwent magnetic resonance imaging ("MRI") on August
13, 2002, which revealed a moderate central and left-sided disc
herniation at the L2-3 vertebral level causing constriction of
the spinal canal in immediate proximity to nerve structures
running from the spinal cord down to the patient's left buttocks
and lower extremity. Id. ¶ 29. The MRI also showed bulging,
which was causing a mild compression of the thecal sac at the
L1-2 level, and at least one other left-sided herniation at L4-5
causing similar compression of the thecal sac at that level.
Byrne's hip and lower back pain resurfaced in March of 2004,
causing him to return to Dr. Harrison's office. (Pl.'s Rule 56.1
Stmt. ¶ 19). The record does not reveal any further treatment by
Byrne claims that an examination by Dr. Block on May 18, 2004
indicated that Byrne's ability to laterally bend at the waist had
not meaningfully improved and he again had problems, as before,
with straight leg raising in both seated and supine positions.
Id. ¶ 31. Byrne also asserts that he continues to experience
low back pain every couple of weeks, which persists for one or
two days at a time. Id. ¶ 33.
There are two prior incidents involving Byrne that are relevant
to the matter at hand because they bear on the issue of
causation. One is an occasion approximately fifteen (15) years prior to the accident in the instant case, after which Byrne
experienced pain in the lower right side of his back while
playing golf. (Pl.'s Rul 56.1 Stmt. ¶ 22). Byrne was treated by a
physician on one occasion for this, had an MRI, and received no
further care. Id. ¶ 22. The other incident was a 1990 car
accident in which Byrne was involved. (Byrne Dep. at 58-61).
Following the 1990 accident, Byrne was seen in the emergency room
of Roosevelt Hospital for shoulder pain. (Def.'s Rule 56.1 Stmt.
¶ 8; Pl.'s Rule 56.1 Stmt. ¶ 24). Byrne subsequently underwent
physical therapy, consisting of stretches to the neck, ice
treatment and use of a TENS unit. (Def.'s Rule 56.1 Stmt. ¶ 8).
Byrne alleges that since the accident in the instant case, he
can no longer golf, play tennis, jog, or box, and has difficulty
picking things up and getting in and out of chairs and bed.
(Def.'s Rule 56.1 Stmt. ¶ 10; Pl.'s Rule 56.1 Stmt. ¶ 34). Byrne
also claims that as a result of the accident he missed one week
of work at his job as a bartender where he works one shift per
A. Standard on Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment
"shall be rendered forthwith" if it is shown that "there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4
(1986). "[G]enuineness runs to whether disputed factual issues
can reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations
omitted). In order to prove that a genuine issue of material fact
exists, a plaintiff "may not rest upon the mere allegations or
denials of the pleading[s]," but must by affidavit or otherwise
"set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). "Conclusory statements,
conjecture or speculation by the party resisting the motion will
not defeat summary judgment." Kulak v. City of New York,
88 F. 3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable
factual inferences in favor of the non-moving party. See Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact
exists. If the evidence [presented by the non-moving party] is
merely colorable, or is not significantly probative, summary
judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d
Cir. 1998) (internal quotations and citations omitted)
(alteration in original). B. New York Insurance Law
Defendants allege that the injuries claimed by Byrne do not
amount to "serious injury" within the meaning of Insurance Law §
5102, commonly known as New York's No-Fault Insurance Law. The
purpose of New York's No-Fault Insurance Law is to promote prompt
resolution of injury claims, limit cost to consumers and
alleviate unnecessary burdens on the courts. Pommells v. Perez,
2005 N.Y. LEXIS 1041, *1-2 (2005) (citing the Comprehensive
Automobile Insurance Reparations Act, L 1973, ch 13; Governor's
Mem. Approving L 1973, ch 13, 1973 McKinney's Session Laws of NY,
at 2335). Injured parties are compensated under car owners'
insurance policies for "basic economic loss" resulting from the
use or operation of that vehicle in New York State, without
regard to fault. Id. at *2. In order to recover against the car
owner or driver for non-economic loss, the injury must be defined
as "serious." N.Y. INS. LAW § 5104 (Consol. 2005). "Serious
injury" is defined as a personal injury that 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 LAW § 5102 (Consol. 2005).
Defendants initially argue that plaintiff's action should be
dismissed because plaintiff, in response to defendants' demand
for interrogatories, did not specify under which particular
category of § 5102 his injuries fell. However, defendants'
interrogatories did not solicit this information. Defendants'
interrogatory requested plaintiffs to, "Specify each category of
damages alleged herein including any medical diagnosis and
prognosis relating to personal injuries, and state whether each
such injuries claim to be permanent and whether treatment is
continuing." (Pl.'s Rule 56.1 Stmt., Exh. E). Plaintiff's answer
comprehensively listed the injuries allegedly sustained and
further stated that "[t]he accident and injuries sustained by the
plaintiff caused and contributed to . . . the need for medication
and treatment," that "[t]he above injuries and their sequelae are
permanent and possessive in nature and character" (Def.'s Rule
56.1 Stmt., Exh. B). Had defendants desired the word "category,"
as used in defendants' interrogatory, to have signified "category
of injury as defined in § 5102 of the New York State Insurance
Law," they could have fashioned their interrogatory to this
effect. They did not, and therefore plaintiff's answer is
sufficiently responsive. Further, plaintiff's answer was aligned
with the purposes of Federal Rule of Civil Procedure 33, because
it enabled defendants to prepare for trial, to narrow the issues,
and to reduce the possibility of surprise all goals of Rule
33.8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 2162 (1994). Defendants in the instant case bear the burden, on summary
judgment, of establishing that plaintiff has not sustained a
serious injury as defined in § 5102. Tarnopolsky v. Sanchez,
2002 U.S. Dist. LEXIS 20588, *6-7 (S.D.N.Y. 2002). If defendants
meet this burden, the burden then shifts to the plaintiff to
prove he has suffered serious injury. Id. The issue of whether
plaintiff has sustained such an injury under the statute is a
threshold issue for the court to decide. Licari v. Elliott,
57 N.Y.2d 230, 236 (1982).
To meet their burden, defendants must show, through submission
of competent medical evidence, that the plaintiff did not suffer
a serious injury causally related to the accident. John v.
Engel, 2 A.D.3d 1027, 1028 (2d Dep't 2003). Here, defendants
have met their burden by submitting, in support of their motion,
the reports of Orthopedist Irving Liebman, M.D., Neurologist Paul
Slotwiner, M.D., and Radiologist Elizabeth Lazzara, M.D. Dr.
Liebman's report was based on an examination of Byrne he
conducted on April 20, 2004. Dr. Liebman found no orthopedic
objective evidence of disability, and opined that Byrne suffered
merely soft tissue injuries from the July 1, 2002 accident, from
which he has fully recovered. (Def.'s Summ. J. Mot., Exhibit G).
Dr. Slotwiner's independent neurologic evaluation concluded that
there were "no objective neurologic findings indicating
neurologic sequelae of the reported incident of July 1, 2002."
(Def.'s Summ. J. Mot., Ex. H). Dr. Lazzara's report consisted of
a review of the original radiology report of August 13, 2002,
which indicated left paracentral disc herniations at L2-3 and
L5-S1, L1-2, L3-4 and L4-5 disc bulges, multilevel degenerative
disc disease with spondylosis, and facet osteoarthritis. (Def.'s
Summ. J. Mot., Ex. I). Dr. Lazzara commented that "[d]egenerative
disc disease, spondylosis and osteoarthritis are chronic
processes of longstanding duration that are not acute sequelae of
trauma," and that "disc degeneration/desiccation is a normal part
of aging. . . ." (Id.). Dr. Lazzara further remarked that the
disc bulges and the L5-S1 herniation are unlikely due to the
accident in question, and "the L2-3 disc herniation is
indeterminate from the present examination." Id.
The burden now shifts to plaintiffs to raise a triable issue of
fact that a serious injury was sustained. Bent v. Jackson,
788 N.Y.S.2d 56, at 57-58 (1st Dep't 2005) (citing Gaddy v. Eyler,
79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 (1992).
Plaintiff here alleges that his serious injuries fall under two
categories within Insurance Law § 5102(d): (1) permanent
consequential limitation of use of a body organ or member; (2)
significant limitation of use of a body function or
system.*fn3 Because the intent of the No-Fault Law is to
weed out frivolous claims and limit recovery to significant
injuries, courts require objective proof of plaintiff's injury; subjective complaints
alone are not sufficient. Toure v. Avis Rent a Car Sys.,
98 N.Y.2d 345, 350 (2002).
With respect to each of the two categories presently at issue,
the New York Court of Appeals uses the terms "significant" and
"consequential" interchangeably and defines "significant" and
"consequential" simply as "important." Toure v. Avis Rent a Car
Sys., 98 N.Y.2d 345, 353 (2002) (quoting Dufel v. Green,
84 N.Y.2d 795, 798 (1995)). The inquiry of whether the limitation of
use is important "relates to medical significance and involves a
comparative determination of the degree or qualitative nature of
an injury based on the normal function, purpose and use of the
body part." Id. Further, "significant" denotes something more
than minor limitation of use; minor, mild or slight limitation is
classified as insignificant within the meaning of the statute.
Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570,
441 N.E.2d 1088 (1982). Additionally, in determining whether an injury
constitutes "significant limitation of use of body function or
system," duration of limitation must be considered, as well as
extent or degree of limitation. Partlow v. Meehan,
155 A.D. 2d 647, 548 N.Y.S.2d 239 (2d Dep't 1989).
Dr. Block determined the "qualitative nature" of Byrne's
inability to laterally bend or tilt at the waist "based on the
normal function, purpose and use of the body part," Dufel,
84 N.Y.2d at 798, by stating that Byrne's range of motion is less
than Dr. Block would expect in a "normal" man of Byrne's age and
general health. (Affidavit of Jerome D. Block, M.D., sworn to
September 9, 2004 ("Block Aff.") ¶ 4). Dr. Block provides a
"comparative determination of the degree of" Byrne's injury by
testifying that Byrne's ability to tilt to the left was
diminished by 25-30%. Id. Dr. Block attributes Byrne's
limitation of motion to the nature of his injuries by opining
that Byrne's "inability to normally move his lower torso and left
lower extremity" are "reflected in his difficulty climbing stairs
and with bending." Id. ¶ 8. Dr. Block's opinion is supported by
the objective medical evidence of Byrne's August 13, 2002 MRI,
and Dr. Block's physical examination. Dr. Block further remarked
that due to Byrne's unchanged condition as of Dr. Block's May 18,
2004 examination, Byrne's injuries are permanent and connected
with the instant accident. Id. ¶ 9.*fn4
The Court finds that the plaintiff has raised triable issues of
fact with regard to whether he suffered serious injuries that
fall within the categories of permanent consequential limitation
of use of a body organ or member and significant limitation of
use of a body function or system under the New York Insurance Law
§ 5102(d). Byrne's alleged limitations of use were not so mild,
minor or slight, such that the Court may consider them
insignificant within the meaning of New York Insurance Law §
5102(d). Toure, 98 N.Y.2d at 353 (citing Licari,
57 N.Y.2d at 236; Gaddy, 79 N.Y.2d at 957; Scheer v. Koubek,
70 N.Y.2d 678, 679 (1987)). Dr. Block's testimony explained the plaintiff's
limitation of use of Byrne's lower torso and lower extremity in qualitative and comparative terms, and indicated that Byrne's
symptoms had not meaningfully diminished two years after the
accident. Considering plaintiff's evidence in the light most
favorable to him, the defendants' motion for summary judgment
must be denied.
For the foregoing reasons, defendant's motion for summary
judgment is DENIED. A pre-trial schedule will be established in
the accompanying Order.