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Edmond H. Boctor and Michelle Boctor v. Kathlene Czekus and Crete Carrier Corporation

May 17, 2012

EDMOND H. BOCTOR AND MICHELLE BOCTOR PLAINTIFFS,
v.
KATHLENE CZEKUS AND CRETE CARRIER CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

In this diversity action, Plaintiff Edmond Boctor alleges that he was "seriously injured" as defined by New York State Insurance Law § 5102(d) when he was struck by a truck driven by Defendant, Kathleen Czekus, while she was in the employ of co-Defendant, Crete Carrier Corporation ("Crete").*fn1 Presently before this Court is Defendants' motion for summary judgment. (Docket No. 43.) For the following reasons, that motion is granted.

II. BACKGROUND

A. Facts

The basic facts in this case are not in dispute: Principally as a result of Czekus' negligence, she and Boctor were in a car accident in the Town of Tonawanda, New York on August 25, 2008.*fn2 *fn3 (Defendants' Statement of Facts ("Defs.' State."), ¶ 1; Docket No. 45.)

Boctor was seen by several doctors in the years following the accident, including five visits with his physician, Douglas Moreland, M.D., who reported that immediately after the accident he was taken to Kenmore Mercy Hospital with complaints of neck, shoulder, and chest pain. (10/20/2011 Moreland Report, p. 1, attached as "Ex. 2" to Quinn Aff.; Docket No. 50-3.) According to Dr. Moreland, he was released that day. (Id.) Thereafter, Dr. Moreland opined that on Boctor's initial visit with him, Boctor exhibited signs of "some posterior cervical neck tenderness, but full range of motion of his neck." (Id.) He did, however, feel "some achy discomfort in the back of the neck" and "achiness in the back." (Id.) Over the course of his next four visits with Dr. Moreland, Boctor's neck pain "generally improved," but upon release from Dr. Moreland's care, he continued to have pain in the lower back and left leg. (Id.) Dr. Moreland considered him "fully disabled" from August 25, 2008 to February 9, 2009. (Id.)

Wayne Kerness, M.D., an orthopedic surgeon, conducted an independent medical examination ("IME") on Boctor on October 29, 2008. (Defs.' State., ¶ 7.) He concluded that Boctor required no further treatment and that he was capable of working and performing activities of daily living without restrictions. (Id., ¶ 9.)

On March 26, 2009, Dr. Patrick Hughes, M.D., a neurologist, conducted a IME on Boctor and concluded that "from a neurology standpoint, the claimant does not need further treatment." (3/26/09 Hughes Report, p. 5, attached as "Ex. 4" to Quinn Aff.; Docket No. 50-5.)

Michael Landi, M.D., a neurosurgeon, conducted an IME on Boctor on April 1, 2011. (Defs.' State., ¶ 10.) Dr. Landi found that the medical history demonstrated that Boctor experienced cervical and lumbar strain as a result of the accident. (Landi Report, p.13, attached as "Ex. D" to Defs.' Mot. for Summ. J.; Docket No. 43.) He concluded that Boctor sustained "no casually related limitations" and that his "prognosis is good." (Defs.' State., ¶ 11.)

B. Procedural History

This action commenced in this Court when Defendants filed their notice of removal on April 13, 2010. (Docket No. 1.) After discovery, Defendants filed a motion for summary judgment on Feburary 14, 2012. Briefing concluded on April 18, 2012, at which time this Court took the motion under advisement without oral argument.

III. DISCUSSION

A. Summary Judgment ...


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