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Tsveitel v. Geoghegan

July 21, 2009

MIKHAIL TSVEITEL, LUBOV TSVEITEL, SOLOMON TSEITEL AND RIVA TSVEYTEL, PLAINTIFFS,
v.
JOSEPH GEOGHEGAN, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiffs Mikhail Tsveitel ("Mikhail"), Lubov Tsveitel ("Lubov"), Solomon Tseitel*fn1 ("Solomon") and Riva Tsveytel*fn2 ("Riva") brought this action in Supreme Court of the State of New York, Kings County, pursuant to N.Y. Insurance Law § 5104(a). Plaintiffs were involved in a motor vehicle collision with a car operated by the defendant Joseph Geoghegan ("defendant"). The action was removed on December 8, 2005. Defendant now moves for summary judgment against three of the plaintiffs - Mikhail, Lubov and Riva ("plaintiffs") -- on the grounds that they did not suffer a "serious injury," as required by N.Y. Insurance Law § 5104(a) and defined by N.Y. Insurance Law § 5102(d). Although the claims of each plaintiff comes as close to the line as possible, countervailing precedent requires that defendant's motions be denied.

BACKGROUND

Plaintiffs allege that they were injured on Saturday July 17, 2004, when the vehicle they occupied was rear-ended by defendant's car. Mikhail was the driver at the time of the accident. Deposition of Mikhail Tsveitel ("Mikhail Dep.") at 9. The force of the collision caused plaintiffs' automobile to rear-end the vehicle stopped directly in front of theirs. Id. at 13-14. Plaintiffs all claim to have been wearing a seatbelt at the time of the incident. Id. at 17; Deposition of Lubov Tsveitel ("Lubov Dep.") at 6; Deposition of Riva Tsveytel ("Riva Dep.") at 7. Plaintiffs' car, totaled as a result of the accident, was towed from the scene. Mikhail Dep. at 22, 24. Plaintiffs did not seek hospital care immediately following the accident (the "July accident"), instead choosing to return home. Id. at 24-27.

Following the July accident, Mikhail was "confined" to his home for one week. Pls.' Resp. to Def.'s Interogs. at ¶ 6. At his deposition, on the other hand, Mikhail testified that he went to work on the Monday immediately following the accident. Mikhail Dep. at 38. Lubov was "confined" to her home for two days. Id. At her deposition, however, Lubov testified that she did not miss any time from work as a result of the accident.

Lubov Dep. at 21. Riva was "confined" to her home for one day. Id. On July 20, 2004, plaintiffs visited with Dr. Randolph Rosarian, at Elm Medical, P.C. in Brooklyn, New York.

A. Mikhail

During his initial visit with Dr. Rosarian, Mikhail complained of headaches and neck and back pain. Pls.' Affirmation in Opp'n ("Pls.' Opp'n"), Ex. A at 1. On performing range of motion testing, Dr. Rosarian measured a decrease from the norm in range of motion for Mikhail's cervical and lumbar spine. Id. at 1-2. Dr. Rosarian then prescribed that Mikhail perform a varied regimen of physical therapy that continued until he concluded that Mikhail had derived the maximum medical benefit from the treatment. Id. at 2-3. After several weeks of physical therapy without improvement, Dr. Rosarian prescribed and reviewed two computed tomography ("CT") scans. The scans revealed disc bulges at C5-C6 and L4-L5 and a disc herniation at L5-S1. Id. at 2. Dr. Rosarian also reviewed two CT scans that were taken following a 1998 accident that Mikhail was involved in, and compared them with the two CT scans taken after the July accident, finding that Mikhail's disc bulges and herniation were a direct result of the July accident and not a result of the 1998 accident. Id. at 2-3.

On October 25, 2007, Mikhail was examined by defendant's expert orthopedist, Dr. Todd B. Soifer ("Dr. Soifer"), and defendant's expert neurologist, Dr. Maria A. DeJesus ("Dr. DeJesus"). Both experts concluded that Mikhail did not suffer from any disability. Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. F at 6, Ex. E at 7. Another defense expert, Dr. Melissa Sapan Cohn ("Dr. Cohn"), a radiologist, reviewed the CT scans taken of Mikhail's cervical and lumbar spine, finding the minimal disc bulges at C5-C6, L4-L5 and L5-S1 to be unrelated to trauma and that there was no evidence of disc herniation. Def.'s Mot., Ex. G at 3, 5-6.

On June 4, 2008, Dr. Rosarian performed a follow-up examination of Mikhail, noting that Mikhail continued to complain about neck and lower back pain. Pls.' Opp'n, Ex. A at 3. Range of motion testing performed by Dr. Rosarian revealed an improved, but still less than normal, range of motion in Mikhail's cervical and lumbar spine. Id. at 3-4. At his deposition, Mikhail testified that he continues experiencing neck and back pain, for which he occasionally takes over-the-counter medication. Mikhail Dep. at 44-45.

B. Lubov

During her initial visit with Dr. Rosarian on July 20, 2004, Lubov complained of headaches and pain in her neck, lower back and left hip. Pls.' Opp'n, Ex. H at 1. On performing range of motion testing, Dr. Rosarian measured a decrease from the norm in range of motion for Lubov's cervical and lumbar spine. Id. at 1- 2. Dr. Rosarian then prescribed a regimen of physical therapy that continued until he determined that Lubov had derived the maximum medical benefit from the treatment. Id. at 2-3. After several weeks of physical therapy without improvement, Dr. Rosarian prescribed and reviewed two magnetic resonance imaging ("MRI") scans of Lubov's cervical and lumbar spine. Id. at 2. The scans revealed disc bulges at C3-C4, C4-C5 and C5-C6 and a disc herniation at L4-L5. Id. at 2.

On October 25, 2007, Lubov was examined by defendant's experts, Dr. Soifer and Dr. DeJesus. Both experts concluded that Lubov did not suffer from any disability. Def.'s Mot., Ex. J at 6, Ex. K at 6. Dr. Cohn reviewed the MRIs taken of Lubov's cervical and lumbar spine, finding that the disc bulges at C3-C4, C4-C5, C5-C6 and L4-L5 were unrelated to trauma and that there was no evidence of disc herniation. Def.'s Mot., Ex. L at 4, 6.

On June 4, 2008, Dr. Rosarian conducted a follow-up examination of Lubov, noting that Lubov continued complaining about pain in her neck, lower back and left hip. Pls.' Opp'n, Ex. H at 3. Tests performed by Dr. Rosarian revealed an improved, but below normal, range of motion for Lubov's cervical and lumbar spine. Id. Lubov testified at her September 25, 2007 deposition, that she continues experiencing pain in her hip and neck. Lubov Dep. at 25.

C. Riva

During her initial visit with Dr. Rosarian on July 20, 2004, Riva complained of headaches and neck and right knee pain. Pls.' Opp'n, Ex. M at 1. On performing range of motion testing, Dr. Rosarian measured a decrease from the norm in range of motion for Riva's cervical spine. Id. Dr. Rosarian then prescribed a regimen of physical therapy that continued until he determined that Riva had derived the maximum medical benefit from the treatment. Id. at 2. After several weeks of physical therapy without improvement, Dr. Rosarian prescribed and reviewed an MRI of Riva's cervical spine, which revealed disc bulges at C3-C4, C5-C6 and C6-C7. Id.

On October 25, 2007, Riva was examined by defendant's experts, Dr. Soifer and Dr. DeJesus. Both experts concluded that Riva did not suffer from any disability. Def.'s Mot., Ex. N at 7, Ex. O at 6. Dr. Cohn reviewed the MRI taken of Riva's cervical and lumbar spine, finding the disc bulges at C3-C4, C5-C6 and C6-C7 to be unrelated to trauma and that there was no evidence of disc herniation. Def.'s Mot., Ex. P at 4.

On June 4, 2008, Dr. Rosarian conducted a follow-up examination of Riva, noting that Riva continued complaining about pain in her neck and right knee. Pls.' Opp'n, Ex. M at 2. Tests performed by Dr. Rosarian revealed an improved, but below normal, range of motion in Riva's cervical spine. Id. at 3. Riva testified at her September 25, 2007 deposition that she continues experiencing neck pain. Riva Dep. at 13.

DISCUSSION

(1) Standard for Summary Judgment

Summary judgment is to be granted when "the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The non-moving party's evidence is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Genuine issues of fact are not created by conclusory allegations" Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). "Summary judgment is proper when, after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." Id. (citing Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)).

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

Because jurisdiction in this case is based on diversity of citizenship, New York substantive law governs. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 549 F.3d 137, 141-42 (2nd Cir. 2008). According to New York law, "[w]hether a claimed injury meets the statutory definition of a 'serious injury' is a question of law which may properly be decided by the court on a motion for summary judgment." Martin v. Schwartz, 308 A.D.2d 318, 319, 766 N.Y.S.2d 13, 15 (1st Dep't 2003) (citing Licari v. Elliott, 57 N.Y.2d 230, 237, 441 N.E.2d 1088, 1091, 455 N.Y.S.2d 570, 573 (1982)).

In order to sustain a cause of action for personal injuries arising out of negligence from a motor vehicle accident in New York State, plaintiffs must first prove they sustained either basic economic loss or serious injury. N.Y. Insurance Law § 5104(a). A plaintiff must also establish that the injuries alleged are causally related to the accident at issue. See Pommells v. Perez, 4 N.Y.3d 566, 572, 830 N.E.2d 278, 281, 797 N.Y.S.2d 380, 383 (2005). Serious injury is defined as a personal injury that results in any of the following:

[1] death; [2] dismemberment; [3] significant disfigurement; [4] a fracture; [5] loss of a fetus; [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; or [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. N.Y. Insurance Law § 5102(d).

New York courts require objective proof of a plaintiff's injury in order to "satisfy the statutory serious injury threshold [as] subjective complaints alone are not sufficient." Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350, 774 N.E.2d 1197, 1199-1200, 746 N.Y.S.2d 865, 868 (2002) (internal citations omitted). The New York Court of Appeals has long recognized that "the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries." Dufel v. Green, 84 N.Y.2d 795, 798, 647 N.E.2d 105, 107, 622 N.Y.S.2d 900, 902 (1995). "Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system." Licari, 57 N.Y.2d at 235.

In the present case, it is clear that plaintiffs did not suffer (1) death, (2) dismemberment, (3) significant disfigurement, (4) fracture, (5) loss of fetus or (6) permanent loss of use of a body organ, ...


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