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Carol A. Davis v. Christopher Ogando and

October 19, 2011


The opinion of the court was delivered by: Gold, S., United States Magistrate Judge

Memorandum & Order


Plaintiff, Carol Davis, brings this action seeking to recover for personal injuries she claims she sustained as a result of a car accident with Defendants, Christopher and Clodomiro Ogando, on September 22, 2007. Defendants have moved for summary judgment on the grounds that Plaintiff did not sustain a serious injury. For the reasons stated below, Defendants' motion is granted.


The following facts are drawn primarily from Defendants' statement of facts submitted, as required by Local Civil Rule 56.1(a), with their summary judgment motion.*fn1 Plaintiff failed to submit the mandatory response to Defendants' statement of facts. See Local Civil Rule 56.1(b) (requiring "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party" to be filed in opposition to a motion for summary judgment). Without such a corresponding statement, all assertions in Defendants' Rule 56.1 submission may be deemed admitted. See Rule 56.1(c).*fn2 Nonetheless, I have not merely relied on the assertions in Defendants' statement of facts but have also reviewed the underlying evidence cited in support of them.

On September 22, 2007, Defendants' car struck the front driver's side of Plaintiff's vehicle as Plaintiff approached an intersection in Staten Island, New York. Def. R.56.1 ¶¶ 16, 18; Davis Dep. at 47-49. Following the accident, Plaintiff was taken by ambulance to the emergency room complaining of headaches and injuries to her neck, right knee, pelvis and left shoulder. Def. R.56.1 ¶ 22; Davis Dep. at 106-08. During her emergency room visit, Plaintiff was diagnosed with cervical strain, contusions of the right hip and knee and a right ankle sprain. Def. R.56.1 ¶ 33; Def. Ex. H. X-rays were taken at that time of Plaintiff's chest, cervical spine, and right hip, leg, knee and ankle, but no fracture or other abnormality was found. Id., and especially at Docket Entry 17-16 at 19-20.

It appears from Plaintiff's medical records that she subsequently visited a chiropractor three times between September 25, 2007 and July 31, 2008. See Docket Entry 22-5. Plaintiff also had seven visits with a physiatrist between September 28, 2007 and August 11, 2008 and six visits with an orthopedist between October 8, 2007 and July 29, 2008. See Docket Entries 22-3, 22-4, 22-5, 22-6, 22-7.*fn3 Following the accident, Plaintiff also missed two days of work but subsequently returned to her regular work schedule, with the exception of some half work days she took off to attend her physical therapy sessions. Def. R.56.1 ¶ 28; Davis Dep. at 147, 148-49.

Plaintiff sustained other injuries both prior and subsequent to the September 22, 2007 accident. Plaintiff was injured in an earlier car accident around 1995, hurting her neck, right knee, lower back and other areas of her back, and received treatment from several doctors for these injuries. Def. R.56.1 ¶ 4; Davis Dep. at 12-14.*fn4 As a result of that accident, Plaintiff required surgery on her right knee. Def. R.56.1 ¶ 5; Davis Dep. at 84. Plaintiff continued to be treated for injuries to her back, neck and right knee from the 1995 accident through 1996 or 1997. Def. R.56.1 ¶ 11; Davis Dep. at 90. Plaintiff then slipped on ice and fell down several stairs in December, 1998, injuring her coccyx and her hips; after this accident, she required an MRI, X-Rays (showing sciatica in the hip) and treatment. Def. R. 56.1 ¶ 14; Davis Dep. at 91-94. In April, 2005, Plaintiff visited her doctor complaining of neck, back, foot, ankle, calf, and hand pain; regarding her back and ankle pain, her doctor noted a "spasm in the paraspinal lumbrosacral musculature" and limited movement in her right ankle. Def. R.56.1 ¶ 42; Def. Ex. M. Shortly before the subject accident, in January of 2007, Plaintiff returned to her physician complaining of pain and swelling in her right leg. Def. R.56.1 ¶ 10; Davis Dep. at 89.

Finally, Plaintiff was involved in a subsequent car accident on December 31, 2008. Def. R.56.1 ¶ 34; Def. Ex. H. Plaintiff was taken to the hospital by ambulance after this accident. Def. Ex. H.*fn5 She complained of neck pain but said that she did not have any other pain. Def. R. 56.1 ¶ 34; Def. Ex. H. The emergency room physician diagnosed muscle strain. Def. Ex. H. The parties' medical experts differ about whether Plaintiff's injuries were related to the September 22, 2007 accident and whether they constitute serious injury under the statute. Plaintiff's expert, Dr. Vilaire, examined Plaintiff on September 31, 2009, and again on January 24, 2011. See Vilaire Aff.;*fn6 Docket Entry 22-5 at 26-31; Docket Entry 22-6 at 24-26. Other doctors in the same medical practice saw Plaintiff on September 25, 2007 and other occasions. Docket Entry 22-3 at 1-3, Docket Entry 22-4.

Dr. Vilaire found that Plaintiff's range of motion in her spine, right shoulder and right knee were limited. See Vilaire Aff. at 3-6. Based upon this finding, her examinations of Plaintiff and a review of Plaintiff's other treatment after the accident, Dr. Vilaire opined to "a reasonable degree of chiropractic certainty" that Plaintiff "suffered a permanent partial disability causally related to the accident of September 22, 2007." Id. at 9. Dr. Vilaire expanded upon the causal link between Plaintiff's injuries and the accident by saying, "I do not believe the patient's injuries, symptoms and disabilities are a result of any pre-existing or degenerative disease because the patient had no prior symptoms or related disabilities prior to the automobile accident of September 22, 2007." Id.

Defendants' expert, Dr. Grelsamer, examined Plaintiff on September 15, 2010. Grelsamer Aff. ¶ 4, Def. Ex. S. In addition, he reviewed Plaintiff's medical records related to the accident and those from before the accident in question. Id. ¶¶ 2, 3. In contrast to Plaintiff's expert, Dr. Grelsamer found "with a reasonable degree of medical certainty that plaintiff did not sustain a 'serious injury,' as defined by New York insurance Law § 5102(d), as a result of the automobile accident of September 22, 2007." Id. ¶ 11 (emphasis in original). He further determined, upon reviewing Plaintiff's medical records, that injuries to her knee, neck, back, spine, and shoulder were "not causally related to the subject motor vehicle accident as they are "degenerative" in nature and existed prior to the subject accident." Id. ¶ 20 (emphasis in original).


a.Summary judgment standard

A party is entitled to summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). An issue of fact is material if it "might affect the outcome of the suit under the governing law," and a dispute about that fact is genuine "if the evidence [supporting it] is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation omitted). In reaching a summary judgment determination, the court must resolve ambiguities and draw reasonable inferences in favor of the nonmoving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). The moving party bears the initial burden of establishing that there are no genuine issues of material fact; once he does so, the non-moving party may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. Anderson, 477 U.S. at 256; Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. ...

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