United States District Court, S.D. New York
September 8, 2005.
ANGEL L. MANGUAL and JENNY MANGUAL Plaintiffs,
ALEX MORRIS PLEAS, JR. and MISS LYNDSAY TRUCKING Defendants.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendants move for summary judgment, arguing that plaintiff
has not sustained serious injury under New York State Insurance
Law. For the reasons stated below, the motion is DENIED.
On June 25, 1999, plaintiff Angel Mangual was a passenger in
his mini-van operated by his son, Frankie Mangual, when there was
a collision between his vehicle and an eighteen wheel tractor
trailer operated by defendant Alex Morris Pleas, Jr., and owned
by Pleas's business, defendant Miss Lindsay Trucking. The
collision took place at approximately 10:00 p.m. after the
parties had crossed the George Washington Bridge at the
intersection of the Cross Bronx Expressway and the Major Deegan
Expressway. Dep. of A. Mangual, at 18-22. According to plaintiff Mangual, his vehicle was traveling in
the right lane of traffic immediately in front of defendant
Pleas's tractor trailer. Dep. of A. Mangual, at 24-26. As
defendant Pleas passed Mangual's vehicle and entered into the
left lane, defendant's right front bumper made contact with the
left rear portion of Mangual's vehicle, pushing it to the right.
Id. The Mangual vehicle was moving at the time of contact and
it continued to travel without stopping even after the collision.
Id. By contrast, defendant Pleas avers that he was driving in
the middle lane of traffic when Mangual's vehicle, in an attempt
to pass defendant, shot in front of him and sideswiped the right
front of Pleas's vehicle with the left rear of Mangual's vehicle.
Dep. of A. Pleas Jr., at 29-36.
The police accident report reflects the dispute between the
parties, stating that Mangual alleged that defendant Pleas's
vehicle hit the rear of his vehicle when all of the Expressway's
lanes merged into one lane, while Pleas maintained that the
Mangual vehicle cut Pleas off and hit Pleas. Pl.'s Ex. G. The
report identifies the point of impact and most of the damage as
occurring along the rear lefthand side panel of plaintiff's
vehicle. Id. The report also includes a diagram depicting the
two vehicles at an approximately 130 degree angle, with the
Mangual vehicle angled in front of the Pleas vehicle and the
Pleas vehicle traveling straight-on. The Mangual vehicle appears
to be merging from the right, with its path into Pleas's lane
guided by traffic cones along the right side of the roadway.
Id. According to the diagram, the point of contact between the
two vehicles is the right front of the Pleas vehicle with the
rear left side of Mangual's vehicle. Id.
After the accident, plaintiff received chiropractic therapy for
nine months due to alleged accident-related injuries in his neck
and back. Dep. of A. Mangual, at 44-48; Pl.'s Ex. H. He settled
his claim against Frankie Mangual for $20,000 in March of 2001.
Def.'s Ex. 1. In June of 2002, plaintiffs Angel Mangual and his
wife Jenny Mangual filed this action against defendants. They
charge defendants with negligence and seek damages in the amount
of two million dollars for Angel Mangual's injuries and five
hundred thousand dollars for Jenny Mangual for loss of
companionship, services, and expenditures stemming from the
collision. Pl.'s Ex. A.
On July 31, 2003, plaintiffs moved for partial summary judgment
on the issue of liability on the grounds that 1) plaintiff Angel
Mangual was an innocent passenger at the time of the accident,
and 2) defendant Pleas rear-ended plaintiff Angel Mangual's
vehicle and is therefore presumed liable. Plaintiffs further
averred that because Jennie Mangual had a derivative claim, she
is also entitled to summary judgment on the issue of liability.
On April 6, 2004, plaintiffs' motion for partial summary judgment
was denied because there remained material issues of fact as to
the nature of the collision.
Defendants thereafter moved for summary judgment on June 15,
2004, and that motion is presently before the court.
II. SUMMARY JUDGMENT STANDARD
Under Fed.R.Civ.P. 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 v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998) (internal quotations and citations omitted)
(alteration in original).
A. New York Insurance Law*fn1
Defendants argue that the injuries plaintiffs claim to have
sustained are not sufficiently "serious" within the meaning of §
5102 of the New York State Insurance Law, 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 (Apr. 28, 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).
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, 441 N.E.2d 1088,
455 N.Y.S.2d 570 (1982). The initial burden lies with the defendants,
on summary judgment, to establish 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. Sept. 27,
2002). To meet their burden, defendants must show, through
submission of competent medical evidence, i.e., affidavits or
affirmations, that the plaintiff did not suffer a serious injury
causally related to the accident. John v. Engel, 2 A.D.3d 1027,
1028, 768 N.Y.S.2d 527
(2d Dep't 2003). If defendants meet this
burden, the burden then shifts to the plaintiff to prove he has
suffered serious injury. Id.
B. Defendants' Burden
Defendants have met their burden through submission of the
affirmation of Robert S. April, M.D. Def.'s Ex. D. Dr. April's
independent neurological examination of Angel Mangual on May 12,
2003 consisted of a review of previous reports by various
doctors, and Dr. April's own neurological examination. Id. Dr.
April's cranial nerve examination revealed that "during range of
motion of the neck," Mangual experienced spasms of pain in his
right arm and shoulder. Def.'s Ex. D at 2. Mangual stated to Dr.
April at that time that this type of movement "can induce such
severe pain that he has to lie down." Id. Dr. April's motor
examination revealed no neuromuscular atrophy, weakness or
incoordination, and that Mangual's gait, station, toe and heel
walking were normal. Id. Although there was pain on movement of
the right shoulder, there was no limitation of movement of the
shoulder, elbow, or wrist. Id. Dr. Aprils' mechanical testing
revealed that bending forward at the waist from the standing
position could be accomplished to 80 degrees, straight leg raising was negative to
80 degrees bilaterally, and that the spine and paraspinal muscles
were normal in the back. Id. With regard to Mangual's senses,
Dr. April observed no abnormality for touch or pain over the
limbs. Id. Dr. April concluded from his examination that
Mangual "has some form of cervical spondylosis with limitation of
movement, changes in reflexes, and pain . . ." that is "not
related to the accident" in question. Def.'s Ex. D at 3.
C. Plaintiffs' Burden
Plaintiffs now have the burden of raising a triable issue of
fact that Angel Mangual sustained a serious injury as a result of
the accident. Bent v. Jackson, 15 A.D.3d 46, 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). Plaintiffs must
accomplish this through submission of competent medical evidence
based upon objective medical findings and tests to support the
claim of serious injury and to connect the condition to the
accident. McNamara v. Wood, 797 N.Y.S.2d 606 (3rd Dep't 2005)
(citations omitted). Read liberally, the Verified Complaint
alleges serious injury under six categories of Insurance Law §
5102(d), namely the third, fourth, sixth, seventh, eighth, and
ninth categories. Id. These categories are: (3) significant
disfigurement; (4) a fracture; (6) permanent loss of use of a
body organ, member, function or system; (7) permanent
consequential limitation of use of a body organ or member; (8)
significant limitation of use of a body function or system; (9) 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. See N.Y.
INS. LAW § 5102 (Consol. 2005).
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, 774 N.E.2d 1197, 746 N.Y.S.2d 865 (2002).
Plaintiffs have submitted numerous reports, not one of which,
however, is in admissible form. "It is well established that
unsworn medical reports are not a form of admissible evidence
capable of demonstrating a serious injury." Robinson v. United
States, 2005 U.S. Dist. LEXIS 5383, 21-24 (S.D.N.Y. Mar. 30,
2005) (citing Molina v. United States, 301 F. Supp. 2d 317, 321
(S.D.N.Y. 2004); Friedman v. U-Haul Truck Rental,
216 A.D.2d 266, 627 N.Y.S.2d 765 (2d Dep't 1995)). Without evidence in
admissible form, plaintiffs are unable to demonstrate that
Mangual sustained a serious injury, and therefore unable to
withstand defendants' motion for summary judgment. Nevertheless,
this court is inclined to permit plaintiffs to resubmit the
evidence in admissible form, because the evidence contained in
several of the submitted reports, if submitted in admissible
form, suffices to defeat summary judgment. See Nasrallah v.
Oliveiri Helio De & Artichoke Cab Co., 1998 U.S. Dist. LEXIS
4173, 11-13 (S.D.N.Y. Apr. 2, 1998) ("the Court is unwilling to
throw out plaintiffs' case based upon what may very well be a good faith misunderstanding of
plaintiffs' counsel as to what constitutes admissible, as opposed
to sufficient, evidence to create a material fact in dispute.").
The court will address the merits of defendants' motion; however,
plaintiffs will be ordered below to submit admissible evidence in
opposition to defendants' motion within four (4) weeks of the
date of this order. If they do not, the court will sua sponte
reconsider this decision and grant the motion for summary
judgment based upon plaintiff's failure to comply with
Fed.R.Civ.P. 56(e). See id.
1. Significant Disfigurement
Plaintiffs' Verified Complaint avers that plaintiff Mangual
"has sustained serious injuries resulting in . . . a significant
disfigurement. . . ." Pl.'s Ver. Compl. ¶ 2. A significant
disfigurement constitutes a serious injury when a reasonable
person viewing the injured party would regard the person as
unattractive, objectionable, or as the subject of pity or scorn.
Spevak v. Spevak, 213 A.D.2d 622, 622-23 (2d Dep't 1995).
Plaintiffs do not address this category in their opposition
papers, and the record is otherwise devoid of evidence that would
create a triable issue of fact as to whether a reasonable person
would regard Mr. Mangual, upon viewing him, as unattractive,
objectionable, or as the subject of pity or scorn.*fn2
Therefore, as to the first category of serious injury,
defendants' claim is granted.
2. A Fracture
With respect to the fourth category, a fracture means a
fracture of bone only, not cartilage, for example. See Catalan
v. Empire Storage Warehouse, 213 A.D.2d 366 (2d Dep't 1995).
Here also, aside from the bare allegation in the Verified
Complaint, plaintiff has presented no evidence that plaintiff
Mangual sustained a fracture.
Therefore, as to the second category of serious injury,
defendants' claim is granted. 3. Permanent Loss of Use of a Body Organ, Member, Function or
The Verified Complaint alleges that Mangual "sustained serious
injuries resulting in . . . permanent partial loss of use of a
body organ. . . ." Ver. Compl. ¶ 2. The `permanent loss'
referenced in the sixth category, however, must be a "total loss
of use. . . ." Scotto v. Moraldo, 2004 U.S. Dist. LEXIS 16117,
at *17-18 (S.D.N.Y. Aug. 10, 2004) (citing Oberly v. Bangs
Ambulance, Inc., 96 N.Y.2d 295, 297, 299, 727 N.Y.S.2d 378, 379,
381 (2001)). "This type of injury does not involve a partial loss
of use." Id.
None of the evidence submitted by plaintiffs supports a finding
that Angel Mangual has sustained a permanent loss of use of a
body organ, member, function or system. The court will, however,
address certain language located in plaintiffs' submissions in
order to be clear. Mitchell M. Zeren, D.C. met with Angel Mangual
on June 17, 2003. Def.'s Aff. Opp. Summ. J. Ex. H. Dr. Zeren
reviewed various medical records and reports that Mangual had
brought with him, and performed his own examinations, upon which
he based his conclusion that there is a causal relation between
Mangual's injuries and the accident of June 26, 1999. Id. Dr.
Zeren also concluded, in language mirroring that in the Verified
Complaint, that Mangual has suffered a "permanent partial
disability."*fn3 Id. Abiola Familusi, M.D., upon
physically examining Mangual on April 1, 2004, similarly opined
that Mangual's "present condition indicates that he has a partial
permanent impairment of the spine, which is causally connected to
the MVA of June 26, 1999." Def.'s Aff. Opp. Summ. J. Ex. H. In
Oberly, the Appellate Division, Third Department articulated
that a "partial" loss could not be considered under the category
"permanent loss of use," because this would result in an overlap
between this category and the "significant limitation of use"
category. Oberly, 96 N.Y.2d at 678-79, 271 A.D.2d at 137-38;
see also Madden v. Jeong Yi Lee, 2002 U.S. Dist. LEXIS
20248, 13-14 (S.D.N.Y. Oct. 25, 2002). Indeed, "in cases
involving injuries resulting in a partial loss of use of a body
member," the Oberly court stated, "this Court has required that
the limitation be a consequential one." Id. Thus, plaintiffs'
allegations do not suffice to create a triable issue of fact as
to whether Mangual sustained a serious injury under the sixth
category of serious injury, and summary judgment as to this
category of serious injury is hereby granted.
4. Permanent Consequential Limitation of Use of a Body Organ
or Member; Significant Limitation of Use of a Body Function or
With regard to the seventh and eighth categories, the New York
Court of Appeals uses the terms "significant" and "consequential" interchangeably,
defining them simply as "important." Toure v. Avis Rent a Car
Sys., 98 N.Y.2d 345, 353, 774 N.E.2d 1197, 746 N.Y.S.2d 865
(2002) (quoting Dufel v. Green, 84 N.Y.2d 795, 798,
647 N.E.2d 105, 622 N.Y.S.2d 900 (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. "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). In determining whether an
injury constitutes a "significant limitation," 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, 240 (2d Dep't 1989). Additionally, as evident from the
language of the statute, the "permanent consequential limitation"
category applies only to a body "organ" or "member," while the
"significant limitation" category applies only to a body
"function" or "system."
The reports of Dr. Zeren and Dr. Familusi, if submitted in
admissible form, are sufficient to defeat summary judgment on the
issue of whether plaintiff Angel Mangual has sustained a serious
injury under the categories permanent consequential limitation of
use of a body organ or member, and significant limitation of use
of a body function or system. Dr. Zeren concluded that Angel
Mangual has a "partial permanent impairment of the spine." Def.'s
Aff. Opp. Summ. J. Ex. H, Report of Mitchell M. Zeren, D.C. Dr.
Zeren's report and opinion are based on objective evidence
consisting of his examination of Angel Mangual and several tests
performed during the examination, including a straight leg raise
test, cervical compression tests, and a Soto Hall test. Id. Dr.
Zeren also reviewed previous studies and examinations performed
by various physicians who treated Mangual, as well as diagnostic
testing including three MRIs. Id. Dr. Zeren comparatively
determined the quantitative nature of Mangual's injuries by
comparing Mangual's average range of motion to a "Normal Average
Range of Motion," concluding that Mangual experienced losses of
approximately 30 to 50 percent in the "[p]assive cervical spine
ranges of motion" and "passive lumbar range[s] of motion." Id.
Dr. Zeren opined that Mangual has "chronic limitation of spinal
motion and function," as well as "tissue damage including a disc
herniation nerve root irritation" and "muscle and connective
tissue damage." Id. Dr. Zeren reported that Mangual has been
subject to episodes of "various aggravations related to his
activities of daily routines of lifting, reading, sitting, work
. . .," and that he "has remained symptomatic despite the variety
of modalities because of the anatomical derangements noted."
Dr. Familusi reported that Mangual has "diminished cervical
ranges of motion in bilateral rotation, flexion, and lateral
bending," and that he has suffered a "loss of extension in the
lumbar spine." Def.'s Aff. Opp. Summ. J. Ex. H, Report of Abiola
Familusi, M.D., PM & R. Dr. Familusi performed, inter alia, a
Spurling's test and a seated straight leg raise test. Id. Based
on her examination, as well as review of Mangual's MRIs, Dr.
Familusi opined that the injuries sustained were caused by the
accident of June 26, 1999, and that the "trauma . . . has changed
the mechanics of his spine." Id. Although Dr. Familusi did not
offer a numerical loss of motion, she made a qualitative
determination by correlating Mangual's injuries with his loss of
motion, necessity to self-treat on a daily basis, and the
"significant impact on his daily living." Id. Dr. Familusi also notes that Mangual has "remained symptomatic for
many years." Id.
This court finds that reasonable jurors could disagree as to
whether Mangual sustained a serious injury under these two
categories. Both doctors report that his injuries are permanent
and comment on their significance. They offer objectively
measured evidence in the form of their own examinations and
reviews of prior examinations and diagnostic testing, which
indicates the significance of Mangual's injuries by
quantitatively measuring his loss of range of motion or
qualitatively determining the nature of his injuries. If
plaintiffs comply with the requirements set forth above regarding
the submission of evidence in admissible form, they will have met
their burden and will overcome defendants' motion for summary
judgment. Summary judgment at this stage is therefore not
5. Medically Determined Injury for 90/180 Days
This Court finds no triable issue of fact as to whether
plaintiff Mangual was prevented from performing "substantially
all of the material acts which constitute [his] usual and
customary daily activities" for at least 90 out of the 180 days
following the accident. It is repeatedly stated throughout the
submitted reports that Mangual missed no work in the period
immediately following the accident. Given that courts typically
consider a plaintiff's employment history in order to determine
whether an injury has had a substantial impact on the plaintiff's
daily routine, this court must find that, as a matter of law,
plaintiffs are incapable of meeting their burden of proof for
this category. See Robinson, 2005 U.S. Dist. LEXIS at *21-24.
For the foregoing reasons, defendant's motion for summary
judgment is DENIED. Plaintiffs are ordered to resubmit their
evidence in opposition to summary judgment to the Court in
admissible form by October 6, 2005. If they do not, the court
will sua sponte reconsider this decision and grant the motion
for summary judgment based upon plaintiff's failure to comply
with Fed.R.Civ.P. 56(e). The sufficiency of plaintiffs'
evidence will be considered on submission, and a pretrial
schedule, if in order, will be established thereafter.
© 1992-2005 VersusLaw Inc.