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De Los Santos v. Hys Livery Service, Inc.

United States District Court, S.D. New York

May 14, 2014

HYS LIVERY SERVICE, INC. et al., Defendants.



Plaintiff Julio De Los Santos ("Plaintiff") brings this personal injury action under New York State Insurance Law Section 5104 against Defendants HYS Livery and James Abitabile ("Defendants"), seeking to recover damages for an injury he allegedly sustained in a car accident with Defendants. N.Y. Ins. Law § 5104 (McKinney 2009). Defendants move for summary judgment against Plaintiff pursuant to Federal Rule of Civil Procedure 56.

This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332. The Court has reviewed thoroughly all of the parties' submissions. For the following reasons, Defendants' motion is granted.


Plaintiff and Defendants were involved in a car accident on August 12, 2011. (Defs.' Ex. H at 40.) Plaintiff alleges that he sustained an injury to his left ankle as a result of the accident. It is undisputed that Plaintiff, who is employed as a custodian, returned to work two days after the accident and continued to work full time. (Defs.' Ex. H at 90-91.) He underwent arthroscopic ankle surgery in January 2012 and returned to his full time work three months later. (Defs.' Ex. H at 112-13.)

Procedural History and Evidentiary Record

Following a pre-trial conference on February 8, 2013, the Court ordered that all fact discovery be completed by July 26, 2013, and that all expert witness discovery be concluded by August 30, 2013, with initial and rebuttal expert disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2) due 45 and 21 days, respectively, before the expert discovery cut off date. (Pre-Trial Scheduling Order, dkt. entry no. 10.) Defendants filed the instant motion for summary judgment and the accompanying documents, including the report of their medical expert, on September 27, 2013.

Defendants' motion is supported by the report of Dr. Edward Crane, M.D., who opines that, as of his examination of Plaintiff on July 1, 2013, Plaintiff had complete and painfree range of motion in his left ankle. (Defs.' Ex. O.) Defendant also relies upon Plaintiff's deposition testimony confirming that Plaintiff returned to work two days after the accident (Defs.' Ex. H at 90-91), and copies of Plaintiff's medical records, including a March 22, 2012, post surgical report stating that Plaintiff's "[r]ange of motion is free and not track-bound" and that Plaintiff "has no complaints" other than "some residual tenderness, " for which physical therapy was recommended (Defs.' Ex. N).

In opposition to the motion, Plaintiff has proffered his own affidavit, a November 5, 2013, report of Rafael Abramov, D.O. (the "Abramov Report"), an excerpt from his deposition, and copies of his medical records that are accompanied by attestations that they are true copies of the records on file at the various medical facilities. No sworn medical opinions are provided other than in the Abramov Report, which opines, based on a physical examination conducted on October 29, 2013, a review of Plaintiff's prior medical treatment records, and Plaintiff's self-reported symptomology, that Plaintiff suffers from a permanent decrease in the range of motion of his left ankle and pain resulting from the accident. (Pl.'s Ex. A.)


Summary judgment "shall be granted" to the movant 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). A fact is considered material "if it might affect the outcome of the suit under the governing law', " and an issue of fact is a genuine one where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller & Co. Inc. , 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby. Inc. , 477 U.S. 242, 248 (1986)).

The Second Circuit has explained, however, that "[t]he party against whom summary judgment is sought... must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986)).

This personal injury action is governed by New York Insurance Law Article 51, which provides that "there shall be no right of recovery for non-economic loss, except in the case of a serious injury." N.Y. Ins. Law § 5104 (McKinney 2009). A serious injury is, in relevant part, a

permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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 ...

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