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Komarov v. C.P.S Services

September 16, 2008

SERGEY KOMAROV AND OLGA KOMAROVA, PLAINTIFFS,
v.
C.P.S SERVICES, INC. T/A DECORATING SERVICES, JERRY D. CUMMINGS ENTERPRISE LEASING COMPANY AND MATTHEW ROBERT BACKERICK, DEFENDANTS.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM AND ORDER

Plaintiffs Sergey Komarov ("Komarov") and Olga Komarova ("Komarova;" collectively, "plaintiffs") brought this action in Supreme Court, Kings County, pursuant to New York Insurance Law § 5102(d) (McKinney's 2004). Plaintiffs were involved in a three-car accident with a vehicle owned by C.P.S. Services, Inc. ("CPS") and operated by Jerry D. Cummings ("Cummings") and a vehicle owned by Enterprise Leasing Company ("Enterprise") and operated by Matthew Robert Backerick ("Backerick;" collectively with CPS, Cummings and Enterprise, "defendants"). The case was removed to this court on July 29, 2005. Defendants move for summary judgment on the grounds that plaintiffs' injuries are not "serious," as required by § 5102(d).

Background

On Friday, January 7, 2005, between 5:00 and 6:00 p.m., Komarov was driving with his wife in the front passenger seat in her 1997 Chevy Astro across the Verrazano Bridge when they were rear-ended. Komarov was in the left lane approaching the toll plaza at approximately twenty to twenty-five miles per hour when he and his wife felt two heavy impacts from behind. The CPS vehicle driven by Cummings was directly behind plaintiffs' vehicle, and the Enterprise vehicle driven by Backerick was directly behind the CPS vehicle. Backerick rear-ended Cummings, who then ran into plaintiffs' vehicle. Reply Aff. of Paul Cohen in Supp. of Backerick Mot. for Summ. J. ("Cohen Reply Aff."), ¶ 29; Aff. of Frank Pintauro in Supp. of Cummings Mot. for Summ. J. ("Pintauro Aff."), Ex. E (police report stating "it appears that veh. #3 [Backerick's vehicle] following to[o] closely was cause of the accident.").*fn1

Komarova was twenty-eight weeks pregnant at the time of the accident. Both plaintiffs were wearing seatbelts, and the airbags in the vehicle did not deploy. Komarov exited his vehicle to check on the well-being of Cummings and Backerick. A few minutes later, an ambulance arrived to take Komarova to the hospital. Komarov followed the ambulance in his car. At the hospital, Komarova's fetus was monitored and it was determined that the fetus had been unharmed by the accident. Komarov did not seek treatment for any injuries to himself while at the hospital with his wife. Komarova returned to her job the following Monday, where she remained until the day before her baby was born. Komarov, a truck driver, did not return to work for two weeks. It is not clear from the record when Komarov resumed driving a truck.

On January 12, 2005, five days after the accident, Komarov visited Dr. Randolph Rosarion, complaining of pain in his right wrist, neck and back. Dr. Rosarion measured decreased range of motion for Komarov's cervical and lumbar spine and noted that he had a pre-existing ganglion cyst on his right wrist that had been aggravated by the accident. Dr. Rosarion prescribed physical therapy and referred Komarov for further testing. Over the following ten months, Komarov had x-rays and MRI's taken of his wrist, cervical spine and lumbar spine and participated in physical therapy three times per week. He also had surgery to drain the cyst in his right wrist. After receiving maximum benefit from physical therapy, Komarov had restored much of his range of motion, although he still had not achieved normal levels. In addition, he continued to suffer from neck, back and wrist pain, for which he took over-the-counter pain medication.

In the days following the accident, Komarova complained of left knee pain, including edema, as well as neck and lower back pains, and headaches. On January 19, 2005, Komarova was examined by Dr. Rosarion at Elm Medical with regard to her injuries. Aff. of Paul Cohen in Supp. of Backerick Mot. for Summ. J. ("Cohen Aff."), Ex. D ("Komarova Dep.") at 24. Dr. Rosarion conducted cervical spine motion studies, which revealed a 38-60% limitation in her range of motion. Pls.' Opp'n, Ex. J ("Rosarion Report -Komarova") at 5. Dr. Rosarion also conducted tests on Komarova's left knee, a neurological examination, as well as sensory and reflex tests. Id. at 6-7.

Komarova attended twice-weekly physical therapy until she successfully delivered her baby on March 12, 2005. Komarova Dep. at 28. On April 27, 2005, Komarova underwent laparoscopic surgery*fn2 on her left knee and returned home the same day.*fn3

Komarova Dep. at 33-37.

Plaintiffs complain that they both suffered serious injuries in the accident. The specific injuries they complain of will be addressed in detail below.

Discussion

Summary judgment is appropriate when there is "no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Genuine issues of material fact cannot be created by mere conclusory allegations; summary judgment is appropriate only when, "after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party."

Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)).

(1) New York's No-Fault Insurance Law

In order to sustain a cause of action for negligence arising from a motor vehicle accident plaintiffs must prove they sustained either a basic economic loss in excess of $50,000 or a serious injury. N.Y. Insurance Law § 5102(d). Insurance Law § 5102(d) defines the term "serious injury" as:

[1] a personal injury which results in death;

[2] dismemberment;

[3] significant ...


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