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Watson-Tobah v. Royal Moving & Storage, Inc.

United States District Court, S.D. New York

December 5, 2014

ROYAL MOVING & STORAGE, INC. et al., Defendants.



On August 22, 2013, Nikki Watson-Tobah ("plaintiff" or "Watson-Tobah") filed this action against Louis Da-Silva ("Da-Silva") and Royal Moving & Storage, Inc.[1] ("Royal Moving, " and collectively with Da-Silva, "defendants") to recover damages for injuries allegedly sustained in a motor vehicle accident that occurred on September 5, 2011 (the "September 5, 2011 accident"). (ECF No. 8 Ex. A.) On October 22, 2013, defendants removed the action to this Court. (ECF No. 8.)

On September 30, 2014, defendants filed a motion for summary judgment on the grounds that (1) the September 5, 2011 accident did not proximately cause plaintiffs injuries and (2) plaintiff did not sustain "serious injury" as defined by New York law. (See ECF Nos. 117, 120.) On October 7, 2014, the Court informed the parties that it would grant defendants' motion for summary judgment and issue its decision in a separate order. (ECF No. 124.) This Opinion & Order sets forth the predicted order and rationale for the Court's decision.[2]


A. Plaintiffs Accident History

The September 5, 2011 accident-the accident at issue in this action-is only one in a series of workplace injuries, other car accidents, and claims for damages brought by the same plaintiff.

Plaintiff has worked as a police officer with the New York City Police Department since 1996. (Watson-Tobah Dep. 27:6-10, May 23, 2014, ECF No. 119 Ex. B.) As a police officer, plaintiff periodically encountered suspects who violently resisted arrest. Police records spanning a two-year period shortly after plaintiff began her employment-from 1997 to 1999-indicate that she was injury-prone and sustained injuries to her wrists, knees, left ankle, left shoulder, and left hand in the course of effectuating arrests. (See ECF No. 119 Exs. C, D, and E; see also Statement of Uncontested Material Facts in Support of Defendants' Motion for Summary Judgment Pursuant to Local Rule of Civil Procedure 56.1 ("Defs.' 56.1") ¶¶ 10-12, ECF No. 118.)

In addition to sustaining injuries in the course of performing her duties, plaintiff was involved and injured in three separate car accidents prior to her fourth accident, the September 5, 2011 accident, which forms the basis for her claims here. (See. Defs.' 56.1 ¶¶ 1-9, 13-30.) She described the first accident, the exact date of which she could not remember at her deposition, as follows:

I was coming home from work, I was at a light and a vehicle rammed into the back of me. They got out and they started pulling on my doors like to get me out of the car.... Then the guy jumped back in the car after he saw me calling for help. When he was trying to get away, his vehicle was locked onto my vehicle.... He couldn't get loose, so he was knocking me front and back, front and back, front and back. Finally he got loose.... He jumped out of the car and when I opened the door to get out of the car to go after him, I felt a lightning bolt like from my toes to the back of my head, like it just went boom. I started trembling and I just got back in the car.

(Watson-Tobah Dep. 10:8-11:17.) After this accident, plaintiff was transported to a hospital by ambulance. (Id. 15:23-24.) She complained of pain; "[i]t hurt all over." (Id. 16:15-20.) Her neck was placed in a brace. (Id. 17:3-4, 14-15.) Plaintiff retained an attorney and received a settlement check. (See Id . 18:10-11, 12-14.) She could not remember the amount of the settlement at her deposition. (Id. 18:15-17.)

On August 18, 2005, plaintiff was involved in another accident (the "2005 accident") while driving with a co-worker. The car in which plaintiff was riding was rear-ended by another vehicle. (See Watson-Tobah Dep. 18:21-23 ("We were on the Whitestone Expressway and a car flew into the back of us.").) Plaintiff was again taken by ambulance to an emergency room. (Id. 19:12-21.) Plaintiff testified that, again, "[e]verything hurt" after the 2005 accident. (Id. 20:5-8.) Her treatment in the emergency room consisted of pain medication. (Id. 19:22-20:2.) She missed over thirty days of work. (Id. 21:3-4.)

Plaintiff concedes that she injured her neck and back in the 2005 accident. (Plaintiffs Answers to Interrogatories ¶ 13 (stating that plaintiff sustained "[m]id-back, neck and back sprain and strain from motor vehicle accident in August 2005"), ECF No. 119 Ex. A; see also Watson-Tobah Dep. 47:4-7, 20-23.) The day after the 2005 accident, plaintiff visited Dr. Melvin Samuels ("Samuels") of Alex Roit Chiropractic, PC, and complained of "constant chest and neck pain" and "constant mid-back and lower back pain." (ECF No. 119 Ex. H at 1.) Samuels' diagnostic impression was as follows:

1. Status Post-Traumatic Cervical Subluxation (739.1)
2. Status Post-Traumatic Thoracic Subluxation (739.2)
3. Status Post-Traumatic Lumbar Subluxation (739.3)
4. Status Post-Traumatic Cervical Neuritis (723.4)
5. Status Post-Traumatic Cervical Myofacitis (723.1)
6. Status Post-Traumatic Thoracic Sprain (847.1)
7. Status Post-Traumatic Lumbar Neuritis (724.4)
8. Status Post-Traumatic Lumbar Myofacitis (724.2)

(Id. at 3.)

Ten days later, on August 29, 2005, plaintiff visited another doctor-Dr. Lev Bentsianov ("Bentsianov") of L&B Medical P.C. ("L&B")-and reported "headaches, dizziness, [and] pain in the neck radiating to bilateral shoulders." (ECF No. 119 Ex. I at 1.) Plaintiff also reported "numbness, tingling, paresthesias, weakness around her bilateral shoulders, " as well as "constant and transient persisting middle and lower back pain." (Id.) Bentsianov's diagnostic impression was as follows:

Sprain in cervical paraspinal muscles and ligaments (847.0)
Sprain in lumbosacral paraspinal muscles and ligaments (846.0)
Fibromyalgia (729.1)
Myositis (729.7)
[Rule out] Cervical radiculopathy (723.4)
[Rule out] Lumbosacral radiculopathy (724.4)
Posttraumatic stress syndrome (308.9)

(Id. at 4.)[3]

On October 5, 2005, plaintiff underwent an initial physical consultation with Dr. Dale Alexander ("Alexander") of L&B, who documented plaintiff's complaints as follows:

Neck pain-radiating to the upper extremities. The patient denies numbness and tingling sensation in the upper extremities. The patient states that she reports having feeling of "spasm" upon awakening and at the end of the day. Pain-intermittent, dull, is aggravated by abrupt turning of the head forward, backward, side to side: relieved by physical therapy and medications. The patient rates her neck pain as 5 on a pain scale 1-10.
Lower back pain radiating to the left lateral thigh and to the left knee. The patient feels numbness in the left lower extremity. Pain is constant, burning, is exacerbated by bending, and is relieved by medications. The patient rates her low back pain as 8 on a pain scale 1-10.

(ECF No. 119 Ex. F at 1.) Plaintiff "reported sustaining injuries to the cervical and lumbar spine" in the 2005 accident. (Id.) Plaintiff also complained that "she developed neck and low back pain" "immediately" after the 2005 accident. (Id.) Alexander diagnosed plaintiff with "Cervical and Lumbar muscles Posttraumatic sprain syndrome" (id. at 6) and developed a treatment plan that included medications for pain control and physical therapy (id. at 7).

On January 6, 2006, almost five months after the 2005 accident, plaintiff again visited Bentsianov and reported "headaches, dizziness; pain in the neck radiating to bilateral shoulders; [and] constant persisting lower back pain." (ECF No. 119 Ex. J at 1.) Bentsianov noted the following in his report:

Ms. Nikki, Tobah-Watson has received a severe trauma to her head, cervical and lumbar spines, right and left shoulders. This causes vertebrae to be misaligned, ligaments and muscles to be over-stretched, nerves to be irritated and various soft tissues to be inflamed. Injuries of this nature and the body's responses to them can go on for years.
It is my opinion that as a direct result of the traumatic injuries sustained by Ms. Nikki Tobah-Watson in the accident of 08/18/2005 there are extremes of joint movement with concomitant over-stretching and tearing of the supporting structures of the cervical and lumbar spines. The residual sequelae and limitations of functions that resulted constitute a permanent, partial impairment and preclude the possibility to complete restoration.

(Id. at 5-6.) At some point following the 2005 accident, plaintiff retained the same law firm that had represented her in connection with the first car accident; that firm, again, successfully negotiated a settlement. (See Watson-Tobah Dep. 20:22-23, 21:23-24.)

On October 17, 2010, plaintiff was involved in yet a third motor vehicle accident (the "2010 accident"); this accident also resulted in injury to her back and neck. (Defs.' 56.1 ¶ 28.) She was seen in an emergency room three days after the accident. (Id. 29.) A medical report dated October 25, 2010 indicates that plaintiff was told she had a concussion and that she complained of a backache and a headache. (Id. ¶ 30.) Plaintiffs attorney describes the third accident as follows in his sworn affirmation:

In the accident of October 17, 2010 Tobah was seated as a passenger in the rear of a vehicle that was struck by another vehicle. Tobah hit "banged head on side door."... She denied loss of consciousness and no abrasions were noted. The doctors were clearly only concerned with head ...

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