The opinion of the court was delivered by: John Gleeson, District Judge
On November 30, 2007, Sara Goutter filed a complaint in the New York State Supreme Court, Kings County, against defendants Meryle and Jessica Hurley (collectively, "the Hurleys") alleging that she was seriously injured by their negligence. The Hurleys filed a notice of removal on February 27, 2008. They now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 contending that Goutter did not suffer a "serious injury" within the meaning of N.Y. Insurance Law § 5102(d) and that Goutter's left-knee anterior cruciate ligament ("ACL") was not torn in the accident. For the reasons set forth below, the Hurleys' motion is denied.
The following facts are either uncontested or set forth in the light most favorable to the plaintiff. Early in the morning of November 23, 2006, Goutter was struck by a motor vehicle operated by Jessica Hurley and owned by Meryle Hurley while crossing Hudson Street in New York City. Goutter claims that the collision caused the following injuries: an avulsion tear of the ACL and ACL insufficiency in her left knee; tibial edema consistent with bone bruising of the left knee; Grade 1 chondromalacia of the patellafemoral joint; head trauma with concussion and edema; cervical sprain; multiple contusions and abrasions. Pl. Rule 56.1 Stmt. ¶ 2.
At a June 30, 2008 deposition, Goutter testified that she was unconscious after the accident and an ambulance took her to the emergency room at St. Vincent's Medical Center in Manhattan. X-rays and a CAT scan were performed, and Goutter was released after around five hours. Ex. E. 64-65. The following day, she visited her internist, Dr. Michael Stark, and complained of pain in her head, right side, and left leg. Dr. Stark recommended physical therapy. At the time of the accident, Goutter was enrolled at SUNY Albany (she was in New York City for the Thanksgiving break), and she worked part-time at a restaurant. She returned to school "mid-week" following the accident, id. at19, and didn't go back to work "for about a week" after returning to Albany "because it was hard for me to stand for such long hours." Id.
Goutter attended physical therapy sessions for her knee approximately three times in December 2006 and was given a list of exercises which she also performed at home. Id. at68-70. She saw Dr. Stark or his partner, Dr. Eigess, "three or four times" following the accident, id. at 71, but did not see either doctor after 2007. A magnetic resonance imaging scan ("MRI") of Goutter's left knee was taken on January 10, 2007 (the "January MRI"). Radiologist Dr. Lawrence N. Tanenbaum, whose affidavit was submitted with Goutter's opposition papers, examined the MRI and found "no evidence of meniscal or ligament tear." Tanenbaum Aff. 3.*fn1
Goutter visited the office of orthopedist Dr. Joel Bonamo five times after the accident.*fn2 At her first visit, on May 25, 2007, Goutter complained of pain in her left knee and said she could not squat or sit cross-legged. A physical examination revealed "no swelling or effusion" and that Goutter was "ligamentously intact." Bonamo Aff. 3. Bonamo's report also stated that the January 10 MRI "was negative except for edema around the fibula head." Id. Dr. Bonamo recommended "conservative treatment" involving anti-inflammatory medication, resumption of activities "to tolerance," quadriceps exercises and a return visit in four to six weeks. Id.
Dr. Bonamo saw Goutter for her knee pain again on October 10, 2007.*fn3 He found "no evidence of ligamentous insufficiency" but ordered another MRI. An MRI was taken and examined by Dr. Tanenbaum on October 15, 2007 (the "October MRI"). Dr. Tanenbaum reported "an avulsion tear of the anterior cruciate ligament." Tanenbaum Aff. 4. In his report, Tanenbaum stated that the "tear was less evident on the prior examination as the anterior cruciate ligament contour was normal, however in retrospect, the femoral attachment of the anterior cruciate ligament was poorly defined and likely torn." Id. at 4. He repeated this assessment in his sworn affidavit. Id. at 2.
Goutter returned to Dr. Bonamo on April 21, 2008. "She reported occasional buckling" of her left knee and "stated she tried kickboxing and was unable to jump." Bonamo Aff. 5. Bonamo's impression was that Goutter "had left [ACL] insufficiency and also some element of patellofemoral pain." Id. He referred Goutter to orthopedic surgeon Dr. Mark Sherman, who, on May 6, 2008, noted that Goutter "complains of some pain with stairs" but did not "complain of instability," and recommended against ACL reconstructive surgery to repair the tear. Id. at 6. Goutter next visited Bonamo on January 12, 2009. Bonamo diagnosed left ACL insufficiency and again recommended conservative treatment, but opined that Goutter would be a candidate for reconstructive surgery if her symptoms did not subside. Id. at 7.
In an affidavit submitted with Goutter's opposition papers, Dr. Bonamo stated that Goutter continues to experience "patellafemoral pain and [ACL] insufficiency with limitations in engaging in certain activities" and suffers from an "avulsion tear" of the ACL. Id. at 2. He opined that "[i]f the history given by plaintiff is correct, these injuries, within a reasonable degree of medical certainty," were caused by the November 2006 accident. Id. He also stated that Goutter "has a permanent partial disability and permanent consequential limitation of use of her left knee that limits her activities as a result of the accident. These are significant injuries impairing her use of her left knee. Reconstructive surgery of the ACL would be recommended in the event of instability and further buckling." Id. at 2.
On October 6, 2008, Goutter was examined, apparently at the Hurleys' request, by Dr. Gregory Montalbano, an orthopedic surgeon. The only abnormality found by Montalbano was in Goutter's left knee. He noted that Goutter continued to complain of "pain in the left knee," and that treatment "currently consists of gym/home exercises for strength training."
Montalbano Aff. 1.*fn4 While he observed that Goutter had a full range of motion in the knee, he also noted "tenderness" and "abnormal" stability "with a positive Lachman,"*fn5 id. at 3, and concluded that his examination was "consistent with insufficiency of the [ACL]," id. at 4, and that the October 2007 MRI demonstrated an "[ACL] tear." Id. at 5. The report also describes an ACL tear as an "acute" injury and a "substantial" injury. Id. at 4.
Dr. Montalbano also concluded, based on a review of Goutter's medical records, that the ACL tear and ACL insufficiency were "unrelated to the accident." Id. at 5. In his view, the tear was not present in the January MRI and was clearly present in the October MRI, indicating that the ACL was torn after the accident and the January MRI. He also opined that Goutter's symptoms and treatment at St. Vincent's immediately following the accident were inconsistent with a torn ACL. He noted, however, that Goutter saw a Dr. Cozzarelli on February 20, 2007, who found indications of left knee instability, diagnosed an ACL tear, and recommended "ACL reconstruction following physical therapy." Id. at 4.
The Hurleys also submitted an affidavit and two reports from radiologist Dr. Stanley Sprecher. Dr. Sprecher concluded that the October MRI indicated an ACL tear, but that no tear was present on the January MRI. He also concluded that the bone bruising shown on the January MRI was no longer present in the October MRI, and that the October MRI also showed a new bone bruise. He concluded from this review that the ACL tear and ...