The opinion of the court was delivered by: Gold, S., U.S.M.J.
This diversity action arises from a motor vehicle accident between plaintiffs Galina Shamanskaya ("Shamanskaya") and Raisa Karapetyan ("Karapetyan") (collectively, "plaintiffs"), and defendant, Thong Kim Ma ("Ma"). On March 28, 2004, a motor vehicle owned and operated by Ma collided with a vehicle owned and operated by Shamanskaya in Brooklyn, New York. Shamanskaya and a passenger, Karapetyan, both allege that they sustained serious injuries within the meaning of Section 5102(d) of the New York State Insurance Law (also referred to as the "No-Fault Law") as a result of the accident. Plaintiffs seek damages for the personal injuries they claim to have suffered.*fn1 Docket Entry 1, Verified Complaint. Shamanskaya also claims lost earnings in the amount of $1,758.00. Docket Entry 18, Defendant's Local Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶ 10.
Defendant has moved for summary judgment on the ground that neither plaintiff sustained a serious injury within the meaning of New York State Insurance Law § 5102(d).
Docket Entries 17-26. For the reasons set forth below, defendant's motion for summary judgment is denied.*fn2
On March 28, 2004, plaintiffs and defendant were involved in a motor vehicle accident. Def. 56.1 Stmt.¶ 4. As a result of the accident, Shamanskaya, who was born in 1943, alleges injuries to her lumbar spine and right knee, and Karapetyan, who was born in 1956, alleges injuries to her lumbar spine, cervical spine and to both knees. Id. ¶¶ 5-6; Docket Entry 17, Ex. D (Plaintiffs' Answers to Interrogatories). Immediately following the accident, both plaintiffs refused to go to the hospital. Def. 56.1 Stmt. ¶ 7. Three days later, plaintiffs sought medical treatment from Dr. Yelena Istkhoki. Docket Entry 19, Declaration in Support ("Def. Decl.")
¶¶ 6-7. Both plaintiffs underwent a regimen of physical therapy until September of 2004, when they ceased receiving medical treatment for the alleged injuries resulting from the accident. Id.
¶¶8-9. Karapetyan was involved in another motor vehicle accident on October 8, 2007. Def. 56.1 Stmt.¶ 24.
In support of his motion, defendant has submitted, among other things, reports from Dr. Jay Garsman, who performed an MRI of Shamanskaya's lumbar spine and right knee and an MRI of Karapetyan's lumbar spine (Docket Entry 17, Exs. G & H; Docket Entry 26, Ex. A), affirmed reports from Dr. Steven Mendelsohn, who reviewed the MRIs taken by Dr. Garsman (Docket Entry 17, Exs. I, J, K & O), affirmed reports from Dr. Daniel Feuer, who examined plaintiffs on April 28, 2008 (Docket Entry 17, Exs. L & M), and a report by Dr. Istkhoki from her examination of Karapetyan after the accident on October 8, 2007 (Docket Entry 17, Ex. N). In opposition, plaintiffs submitted affirmations from their treating physician, Dr. Istkhoki. Docket Entry 23, Exs. A & B. The relevant findings are summarized below.
Shamanskaya testified at her deposition that, since the accident, she is unable to lift more than three or four pounds, has difficulty bending, and experiences substantial pain in her knee when walking down stairs. Docket Entry 17, Ex. E at 52. Shamanskaya also has trouble getting out of bed and has leg pains that keep her awake at night. Id. at 53. According to her testimony, Shamanskaya did not have back or knee pain prior to the March 28, 2004 accident. Id. at 51.
Dr. Itskhoki states in her affirmation that she diagnosed Shamanskaya with the following injuries during an initial examination on April 2, 2004: (1) acute cervical strain/sprain; (2) acute thoracic strain/sprain; (3) possible cervical radiculopathy; (4) acute lumbosacral strain/sprain; (5) possible lumbosacral radiculopathy; (6) post-traumatic cephalgia; (7) right knee strain/sprain. Docket Entry 23, Affidavit in Opposition, Ex. A ("Physician's Aff. re: Shamanskaya") ¶ 3. Dr. Itskhoki also conducted range of motion tests and noted a 46% reduction of range of motion in Shamanskaya's cervical spine, a 24% reduction of range in her lumbosacral spine, and 7% reduction of range in her right knee. Id. ¶ 4.
Dr. Istkhoki ordered an MRI of Shamanskaya's lumbar spine and right knee. Dr. Garsman, who analyzed the MRI results, found disc bulges with left foraminal compromise at L3-L4, L4-L5 and L5-S1, and noted "diffuse desiccation and multilevel degenerative disease" throughout Shamanskaya's spine. Docket Entry 26, Ex. A. On the MRI of Shamanskaya's right knee, Dr. Garsman found joint effusion, severe chondromalacia of the patella, and noted the presence of degenerative changes. Docket Entry 17, Ex. G. Dr. Istkhoki also ...