United States District Court, E.D. New York
BARBARA ANN PERPALL and PAUL U. PERPALL Plaintiffs,
PAVETEK CORP., RICHARD A. WHEELER, and WILLIAM STILPHEN, Defendants.
MEMORANDUM & ORDER
K. CHEN, United States District Judge
diversity action arose out of a motor vehicle accident that
occurred on December 9, 2010 (the “2010
accident”) in Brooklyn, New York. Plaintiffs Barbara
Perpall (“Perpall” or “Plaintiff”)
and Paul Perpall commenced this against Defendants Pavetek
Corp. (“Pavetek”), Richard Wheeler
(“Wheeler”), and William Stilphen
(“Stilphen”) in connection with the accident.
Plaintiffs allege that Wheeler was driving a car, to which a
trailer was attached, and that the trailer hit the car that
Perpall was driving. (Dkt. 15 (“Am. Compl.”)
¶ 17, 24.) Plaintiffs allege that the car driven by
Wheeler and the trailer were owned by Pavetek and Stilphen.
(Am. Compl. ¶ 17-19, 27.) Perpall alleges that
Defendants' negligence caused severe and serious
emotional harm and physical injuries to her head, neck, back,
and both shoulders. (Dkt. 15, Am. Compl. ¶¶ 27,
29-30.) Paul Perpall claims loss of consortium. (Am. Compl.
the Court is Defendants' motion for summary judgment on
the grounds that (1) the December 9, 2010 accident did not
proximately cause Perpall's injuries, and (2) Perpall
cannot show that she sustained “serious injury”
as defined by New York Insurance Law § 5102(d).
Plaintiffs oppose this motion. For reasons explained below,
the Defendants' motion for summary judgment is GRANTED in
part and DENIED in part.
LOCAL CIVIL RULE 56.1
party has fully complied with Local Rule 56.1. Under the
Local Rule, a party moving for summary judgment must submit
“a separate, short and concise statement, in numbered
paragraphs, of the material facts as to which the moving
party contends there is no genuine issue to be tried.”
Local Civ. R. 56.1(a). “Each statement by the movant or
opponent pursuant to Rule 56.1(a) and (b), including each
statement controverting any statement of material fact,
must be followed by citation to evidence which would be
admissible, set forth as required by Fed.R.Civ.P.
56(c).” Local Civ. R. 56.1(d) (emphasis added).
“The purpose of Local Rule 56.1 is to streamline the
consideration of summary judgment motions by freeing the
district courts from the need to hunt through voluminous
records without guidance from the parties.” Holtz
v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.
2001). Contrary to Local Rule 56.1 (d), Defendants failed to
cite to the record in support of Paragraphs 29, 31, 32, 33,
and 35 in their Rule 56.1 Statement. (See Dkt.
addition, Local Rule 56.1 requires Plaintiffs to either admit
or deny Defendants' 56.1 statements with citations to
admissible evidence. Local Civ. R. 56.1(c) (“Each
numbered paragraph in the statement of material facts set
forth in the statement required to be served by the moving
party will be deemed admitted for purposes of the motion
unless specifically controverted by a correspondingly
numbered paragraph in the statement required to be served by
the opposing party.”). In Plaintiffs' Rule 56.1
Counter-Statement, they do not admit or deny Paragraphs 7,
29, 30, 31 of Defendants' Rule 56.1 Statement.
(See Dkt. 75-1.) The Court therefore deems the facts
in Paragraphs 7 and 30 as undisputed. See Local Civ.
R. 56.1 (c). In their 56.1 Counter-Statement,
Plaintiffs also improperly make legal arguments, refer the
Court to discussions in their Memorandum of Law, and even
resort to exclamatory rants. (See Dkt. 75-1
(“Pl. 56.1”) at ¶¶ 18,  20, 23,
submissions by the parties are similarly deficient. For
example, both parties' memoranda often fail to cite to
the record, even when making fact-based arguments. (See
e.g., Dkt. 73-10, (“Def. Mem”) at
18-19; Dkt. 75-2, (“Pl. Opp.”) at
ECF 14). It is completely unhelpful to the Court
and the party's argument to cite to an entire exhibit
when that exhibit consists of fifty pages of medical office
visit notes and billing documentation. Defendants, at times,
discuss material that is not even in the record,
both parties have submitted documents with inconsistent
dates-where the date on the first page of a doctor's
notes is followed by pages with different
Court is under no obligation to sift through the parties'
voluminous materials to find support for their arguments that
they have failed to point out. See Monahan v. New York
City Dep't of Corrections, 214 F.3d 275, 292 (2d
Cir. 2000) (“While the trial court has discretion to
conduct an assiduous review of the record in an effort to
weigh the propriety of granting a summary judgment motion, it
is not required to consider what the parties fail to point
out.” (citation and quotations omitted)); see
also 24/7 Records, Inc. v. Sony Music Entertainment,
Inc., 429 F.3d 39, 46 (2d Cir. 2005). As it is, the
parties' woefully haphazard and sloppy work has imposed
an undue burden on the Court in its effort to ensure that
both parties ultimately receive fair consideration of their
PLAINTIFF'S MEDICAL HISTORYAND PRIOR ACCIDENT
Plaintiff's Pre-2010 Lower Back Surgeries
to the 2010 accident, Perpall had two lower back surgeries:
one in 1991 and another in 1992. (Dkt. 73-4, Def. Ex. F,
(“Perpall Dep. I”) at 28:13-18; Dkt. 73-9, Def.
Ex. N, (“Back Op. Rec.”) at ECF 2, 6.) Both
surgeries involved Perpall's L4-L5 lumbar spine region.
(Dkt. 73-9, Def. Ex. N, Back Op. Rec. at ECF 4, 6.) In 1991,
Perpall received a laminectomy and a diskectomy at ¶
4-L5 right and a foraminotomy in the same area. (Id.
at ECF 4.) In 1992, Perpall underwent another laminectomy and
discectomy at the right side of L4-L5, a bilateral lateral
fusion at ¶ 4-L5, and a segmental fixation at the same
level. (Id. at ECF 6.)
2005 Accident & Resulting Medical Treatment
2005, Perpall was in a car accident. (Perpall Dep. I at
29:22-23; Def. 56.1 ¶ 23.) Perpall was subsequently
treated by multiple doctors. (See Dkt. 73-9, Def.
Ex. O, Dr. Irving Friedman's notes; Dkt. 73-9, Def. Ex.
P, Dr. Jack Schweitzer's notes; Dkt. 73-9, Def. Ex. Q,
Dr. Appasaheb Naik's notes.) Perpall testified that,
after the accident, she received medical treatment for her
“whole back” and her left shoulder, that she
hired the same attorney who is now representing her in the
instant suit, and that the case eventually settled. (Dkt.
73-4, Def. Ex. F, (“Perpall Dep. I”) at 20:4-21,
30:8-10.) She testified that she underwent two years of
physical therapy for her pain following the 2005 accident.
(Id. at 20:1-3.)
Dr. Irving Friedman
13, 2005, the day after Perpall's 2005 accident, Perpall
consulted with her longtime treating physician, Dr. Irving
Friedman, a neurologist. (Dkt. 73-9, Def. Ex. O at ECF 15.)
Her chief complaints that day were headaches, violent neck
pain that radiated into her left shoulder, and persistent low
back pain. (Id.) After conducting a physical
examination, Dr. Friedman concluded that Plaintiff had
sustained acute post-traumatic injuries to her cervical and
lumbar spine, and that-even though Perpall had a long history
of lumbar spine pain-the accident “dramatically
exacerbated” her lower back condition. (Id. at
ECF 16.) Dr. Friedman also concluded that Perpall had
post-traumatic left shoulder syndrome and noted the need to
“rule out rotator [cuff injury]” and
“impingement.” (Id.) Perpall followed-up
with Dr. Friedman throughout 2005 and 2006. (Id. at
January 22, 2007 narrative report, Dr. Friedman summarized
the history of Perpall's consultation with him up to that
point regarding cervical spine and left shoulder
pain. While Perpall's right shoulder was
near full range of motion, her left shoulder had a markedly
diminished range of motion. (Id. at ECF 27.) He
noted under the heading “CAUSALITY” that
“[t]he [ ] multiple neuro-spinal-ortho deficits are
directly and causally related to the injuries sustained on
July 12, 2005 . . . .” (Id.) He further
stated, “The patient's prognosis for any further
functional improvement is extremely poor in view of the
chronicity of her symptoms and her multiple [ ] clinical,
radiographic, and electrophysiologic abnormalities . . . The
above [ ] deficits are to be considered permanent in nature
and causally related. The patient's prognosis remains
guarded.” (Id. at ECF 28.)
has not pointed to any evidence that she was seen by Dr.
Friedman between January 2007 and December 20,
Dr. Jack Schweitzer
also saw Dr. Jack Schweitzer, a neurologist, on August 4,
2005, soon after her 2005 accident. (Dkt. 73-9, Def. Ex. P at
ECF 30.) She saw Dr. Schweitzer throughout 2005 and 2006
mainly for her neck pain, headaches, and left shoulder pain.
(See Id. at ECF 54.) Dr. Schweitzer's notes
dated September 22, 2005, state that Perpall's “MRI
of the left shoulder was not consistent with any rotator cuff
tear” and that there was evidence of
“acromioclavicular productive changes without
impingement noted.” (Dkt. 75-12, Pl. Ex. J, Dr.
Schweitzer's notes at ECF 4.) Dr. Schweitzer's
February 9, 2006 notes state that Perpall had undergone, in
January 2006, a manipulation of the left shoulder under an
intraarticular block. (Dkt. 73-9, Def. Ex. P at ECF 45.) Dr.
Schweizter also noted “[s]uspicion of impingement
syndrome left shoulder with internal derangement left
shoulder.” (Id.) By April 3, 2006, Dr.
Schweitzer had diagnosed Perpall with, among other things,
impingement syndrome and internal derangement in her left
shoulder. (Id. at ECF 46.) According to Dr.
Schweitzer's July 7, 2006 notes, Perpall reported that,
while the pain in her left shoulder persisted, the level of
pain had improved; she also reported that the left shoulder
ranges of motion had improved subsequent to the manipulation.
(Id. at ECF 52.)
Dr. Appasaheb Naik
14, 2007, Perpall consulted with Dr. Appasaheb Naik. (Dkt.
73-9, Def. Ex. Q at ECF 83.) Dr. Naik's notes indicate
that Perpall had been experiencing severe pain in the right
elbow in spite of treatment with medication and therapy.
(Id.) Dr. Naik's examination of Perpall's
right shoulder revealed a “moderate degree of
discomfort” and a “moderate degree of rotational
difficulties[.]” (Id. at ECF 84.) At the same
time, however, Dr. Naik noted that the “left shoulder
appears to be normal.” (Id. at ECF 84.) About
a week later, on May 23, 2007, according to Dr. Naik's
notes, Perpall reported “significant degree of pain in
the entire right shoulder” and difficulty moving it.
(Id. at ECF 86.) Dr. Naik diagnosed Perpall with
impingement and bursitis of the right shoulder. (Id.
at ECF 88.) While he also noted that Perpall was experiencing
increasing motor weakness and was dropping things, he did not
indicate which upper limb was having such symptoms.
(Id. at ECF 85.)
DECEMBER 9, 2010 ACCIDENT
alleged accident at issue in this case occurred on December
9, 2010, in Brooklyn, New York. (Am. Compl. ¶¶
25-26.) Plaintiffs allege that, at the time of the accident,
Wheeler was driving a 1998 Chevrolet to which a trailer was
attached and that Wheeler's vehicle hit the front
passenger side of the car Perpall was driving. (Id.
¶¶ 17, 24.) Plaintiffs also allege that, at the
time of the accident, (i) Wheeler was an employee of Pavetek
(id. ¶ 8), (ii) Pavetek and Stilphen owned the
1998 Chevrolet (id ¶¶ 12, 14), and (iii)
Pavetek and Stilphen owned the trailer attached to the 1998
Chevrolet (id ¶¶ 13, 15). An ambulance
took Perpall from the accident scene to the emergency room at
Brookdale Hospital Medical Center. (Def. 56.1 ¶ 3; Dkt.
73-4, Def. Ex. F, Perpall Dep. I 84:11-12.) The hospital
diagnosed Perpall with backpain and post-traumatic headache,
prescribed her medication for pain relief, and discharged
her. (Dkt. 73-8, Def. Ex. J; Dkt. 73-4, Def. Ex. F, Perpall
DECEMBER 9, 2010 ACCIDENT AND SUBSEQUENT MEDICAL
Application for no-fault benefits
December 28, 2010, nineteen days after the accident, Perpall
signed a no-fault application in order to receive benefits
from State Farm Insurance Company. In a section that asked
her to describe her injury, she listed the following:
“Head, Neck, Back, Hip, Right side, Left side of Left
Knee.” (Dkt. 73-8, Def. Ex. L at ECF 39.) She stated
that she was treated by Dr. Byung C. Kang, Dr. Irving
Friedman, Dr. Gus Katsigiorgis, and Brookdale University
Medical Center. (Id.)
Dr. Gus Katsigiorgis (December 15, 2010, to November 26,
December 15, 2010, Plaintiff sought medical care with Dr. Gus
Katsigiorgis. (Dkt. 73-8, Ex. K, Dr. Katsigiorgis' notes
at ECF 14.) According to the medical records, Plaintiff
complained of experiencing discomfort in her neck and in her
thoracic and lumbar spine since the 2010 accident.
(Id.) In addition, an examination showed muscle
tenderness in her cervical, thoracic, and lumbar spine, along
with restricted range of motion in her cervical spine.
(Id.) She was diagnosed with sprains in her
cervical, thoracic, and lumbar spine. (Id.) Dr.
Katsigiorgis' April 18, 2011 notes indicate that Perpall
was having neck pain radiating down the right upper extremity
to her hand and was also experiencing tingling along with
radiating low back pain. (Id. at ECF 21.) At an
August 24, 2011 visit, approximately eight months after the
2010 accident, Perpall's chief complaint was pain in her
left shoulder; Perpall received a cortisone injection for
this pain. (Id. at ECF 26.) On June 10, 2012, she
received another cortisone injection for her shoulder pain,
but the medical record does not specify which shoulder
received the injection. (Id. at ECF 31.)
Plaintiff's last documented visit with Dr. Katsigiorgis
occurred on November 26, 2012, at which time she was still
experiencing neck and shoulder pain. (Id. at ECF
Dr. Katsigiorgis' notes mention Perpall's earlier
diagnoses of shoulder conditions; i.e., Dr.
Schweitzer's April 3, 2006 diagnosis of impingement
syndrome of the left shoulder with internal derangement (Dkt.
73-9, Def. Ex. P at ECF 46) and Dr. Friedman's January
22, 2007 diagnosis of left shoulder syndrome with impingement
(Dkt. 73-9, Def. Ex. O at ECF 27).
Dr. Alan Dayan
September 14, 2012, Perpall began consultation with Dr. Alan
Dayan, an Orthopedic Surgeon. (Def. 56.1 ¶ 11; Dkt.
73-8, Def. Ex. M, Dr. Dayan's notes at ECF 50.) According
to Dr. Dayan's notes, Perpall reported experiencing pain
in her left shoulder since the 2010 accident. (Def. 56.1
¶ 11.) Based on a review of an MRI of Perpall's left
shoulder, Dr. Dayan noted “full thickness rotator cuff
tear with severe impingement.” (Id.) Dr. Dayan
recommended arthroscopy to treat her left shoulder.
(Id.) Dr. Dayan's notes also indicate that an
MRI of Perpall's cervical spine dated April 30, 2012
showed disc herniation at the C5-C6 level. (Dkt. 73-8, Def.
Ex. M at ECF 53.) Dr. Dayan's September 14, 2012 notes do
not reference her 2005 accident. (Dkt. 73-8, Def. Ex. M at
January 3, 2013, Perpall received a left shoulder
arthroscopic procedure from Dr. Dayan. (Dkt. 75-14, Ex. L,
Dr. Dayan's notes at ECF 2.) After this surgery, Perpall
had multiple follow-up visits with Dr. Dayan. (Id.)
On June 28, 2013, about six months after the surgery, Dr.
Dayan noted that “there will be partial permanency to
the left shoulder, but maximum medical improvement will not
be reached until approximately 12 to 18 months from the time
of the surgery.” (Id. at ECF 64.)
according to Dr. Dayan's September 12, 2014 notes,
although Perpall was still experiencing stiffness in her left
shoulder, her right shoulder pain became her main concern.
(Def. 56.1 ¶ 14.) After some follow-up visits with Dr.
Dayan to discuss the pain in her right shoulder (see
Dkt. 75-14, Pl. Ex. L at ECF 66-68), on January 30, 2015, Dr.
Dayan recommended to Plaintiff that she undergo an
arthroscopy to her right shoulder (Def. 56.1 ¶ 15). Dr.
Dayan stated in his notes that her “right shoulder . .
. is the direct result of overuse and overcompensation, of
the use of the right arm from her left shoulder injury, which
was injured in a car accident in 2010.” (Dkt. 75-14,
Pl. Ex. L at ECF 68.) At no point did Perpall tell Dr. Dayan
that, prior to the 2010 car accident, she had been diagnosed
with right shoulder tendinopathy and impingement syndrome.
(Def. 56.1 ¶ 18.)
Friedman, along with Drs. Katsigiorgis and Dayan, regularly
treated Perpall after her 2010 accident. (Dkt. 75-7, Pl. Ex.
E, Dr. Friedman's notes; Dkt. 75-15, Pl. Ex. M, Dr.
Friedman's notes (“Pl. Ex. M”); Dkt. 75-16,
Pl. Ex. N, Dr. Friedman's notes.)
December 20, 2010, Perpall was examined by Dr. Friedman.
(Dkt. 75-15, Ex. M at ECF 10.) In his report, under
“Impression, ” Dr. Friedman stated, “As a
result of injuries sustained during an MVA on December 9,
2010, Ms. Barbara Ann Perpall had sustained the following
deficits: (1) Acute post-traumatic cervical myofascitis/spasm
with radiculopathy. (2) Acute post-traumatic lumbar
myofascitis/spasm with radiculopathy. (3) Bilateral shoulder
syndrome. Rule out impingement. Rule out rotator. (4) Acute
post-traumatic cephalgia with tinnitus and vertigo. (5)
Marked aggravation and exacerbation of prior cervical and
lumbar syndrome. (6) Status post prior lumbar surgery in
1991.” (Id.) Dr. Friedman found that there had
been a “dramatic aggravation and exacerbation of her
prior spinal syndrome” and that the “deficits
[were] directly and causally related to the injuries
sustained on December 9, 2010. Mr. [sic] Perpall had been
working regularly for years prior to that.”
(Id. at ECF 11-12.) Dr. Friedman did not reference
Perpall's 2005 accident, the resulting injuries to
Perpall's left shoulder, Dr. Friedman's treatment of
Perpall, or his prior prognosis with regard to her pre-2010
1, 2012, Dr. Friedman summarized Perpall's course of
treatment since her December 20, 2010 visit. (75-15, Pl. Ex.
M.) For about a month after Perpall saw Dr. Friedman, she had
experienced severe daily neck and low back pain.
(Id. at ECF 2.) When Perpall saw Dr. Friedman on
February 28, 2011, he noted that Perpall's grip was
decidedly diminished in both hands. (Id.) By June
23, 2011, Perpall complained of bilateral shoulder pain and
of daily spasm in the paracervical and paralumbar regions.
(Id. at ECF 3.) While Dr. Friedman acknowledged that
Perpall had received back surgery in 1992, he noted that she
had been doing remarkably well and had been working regularly
since that time. Again, he opined that her cervical and
lumbar syndrome were dramatically aggravated and exacerbated
by the injuries caused by the 2010 accident. (Id. at
Friedman's May 31, 2013 narrative report also
summarized Perpall's ongoing care and commented on the
independent medical examination reports by Defendants'
experts, Drs. Jeffrey Passick and Ashok Anant. (Dkt. 75-16,
Pl. Ex. N). In 2007, Dr. Friedman stated that Perpall's
neck and lower back injuries and left shoulder impingement
were “permanent in nature” and that the prognosis
of any further functional improvement was “extremely
poor.” On May 31, 2013, he provided a very different
opinion. (Compare Dkt. 73-9 at ECF 27-28
with Dkt. 75-16, Pl. Ex. N.) Dr. Friedman
“vigorously disagree[d]” with the reports by
Defendants' experts, stating that Perpall had
“basically recovered” from her injuries caused by
the 2005 car accident, “had returned to full time work
with minimal residua, ” but was now experiencing
“gross deficits at the cervical and lumbar
spine.” (Dkt. 75-16, Pl. Ex. N at ECF 5-6.) He
concluded that “with a reasonable degree of
neurological certainty, had Ms. Perpall had [sic] not been
reinjured on December 9, 2010, she would not have had as
rapidly progressive cervical and lumbar deficits. She would
not be a candidate for lumbar surgery at this time. She
certainly would not have had left shoulder arthroscopic
February 6, 2015 report, Dr. Friedman summarized
Perpall's history of treatment and noted that Perpall had
developed increasing pain in her right shoulder. (Dkt. 75-7,
Pl. Ex. E.) He again concluded that Perpall's injuries
were “directly and causally related” to the 2010
accident, and that, in spite of a history of prior lumbar
surgery in 1991 and 1992 and a 2005 car accident, Perpall had
“fully” and “completely” recovered.
(Id. at ECF 6.)
Plaintiff's Examination by Defendants'
was examined by Dr. Jeffrey Passick (Def. 56.1 ¶ 10) and
Dr. Ashok Anant (Pl. 56.1 ¶ 10) on behalf of the
Dr. Jeffrey Passick
April 10, 2013, July 10, 2013, and July 29, 2015,
Dr. Jeffrey Passick performed an independent orthopedic
examination of Perpall and concluded that the injuries to her
neck, back, and left shoulder were not causally related to
the December 9, 2010 accident. (Def. 56.1 ¶ 10.) In
forming his opinion, Dr. Passick examined, among other
things, his past orthopedic examination reports of Perpall,
notes by other doctors who treated Perpall (Dr. Friedman, Dr.
Naik, Dr. Schweitzer, Dr. Katsigiorgis, and Dr. Dayan),
Perpall's operative records, and various MRI reports.
(Dkt. 73-6, Def. Ex. G, Dr. Passick's reports.) Dr.
Passick opined that, given Perpall's prior history of
significant left shoulder pathology, the surgery to her left
shoulder was performed for non-traumatic shoulder derangement
unrelated to the 2010 accident. (Dkt. 73-6, Def. Ex. G at ECF
4-5.) He also noted that the MRI shows a pre-existing disease
in Perpall's right shoulder. (Id. at ECF 12.) He
opined that “[o]veruse, if present, might cause
inflammation, but no anatomic findings demonstrable on
MRI.” (Id. at ECF 12-13.) Dr. Passick
attributed Perpall's current lower back condition to her
previous spinal fusion surgery. (Id. at ECF 20.) As
for Perpall's cervical spine, Dr. Passick stated that
“there [was] no objective evidence of orthopedic
residuals to the cervical spine related to the accident of
12/9/10.” (Id.) He also noted, after examining
Perpall's MRI report dated July 14, 2005, that Perpall
had pre-existing disc bulges at ¶ 5-6 and at other
segments of her cervical spine. (Id. at ECF 15.)
Dr. Ashok Anant
April 5, 2013, Dr. Ashok Anant performed an independent
neurosurgical evaluation of Perpall. (Dkt. 73-6, Def. Ex. H,
Dr. Anant's reports at ECF 22.) Dr. Anant stated that
“[Perpall] had voluntary exaggeration of left sided
weakness and there is no objective finding of true
neurological weakness.” (Id. at 24.) Dr. Anant
concluded, based on his review of Perpall's cervical
spine MRI, that the 2010 accident did not produce any
cervical spine injury and that there was no objective
evidence of cervical myelopathy or cervical radiculopathy.
(Id. at 26.)
Perpall's lower back, Dr. Anant opined that the condition
was caused by the spinal fusions she had previously received.
(Id.) Dr. Anant also commented that the lumbar EMG,
which was read as showing S1 radiculopathy, did not correlate
with Perpall's L3-4 stenosis found on MRI studies and CT
filed the instant lawsuit against Wheeler and Stilphen on
January 24, 2012. (Dkt. 1.) Defendants served their answer on
March 16, 2012. (Dkt. 2.) Plaintiffs then filed an amended
complaint on December 26, 2012, adding Pavetek as a
Defendant. (Dkt. 15.) Defendants served their answer to the
amended complaint on January 17, 2013. (Dkt. 17.) Although
expert discovery regarding Perpall's injuries closed in
August 2013 and the parties filed their joint pre-trial order
in September 2013, the Court extended the discovery cut-off
to February 26, 2015, based on multiple requests by Plaintiff
and over Defendants' objection. (See February
23, 2015 Order.) On April 1, 2015, the Court granted
Plaintiffs' motion to expand their damages claim to
include injury to her right shoulder (April 1, 2015 Order)
and also granted Defendants' motion to take a deposition
from Dr. Dayan (August 11, 2015 Order). After Defendants
deposed Dr. Dayan, Plaintiffs sought to strike Dr.
Dayan's deposition testimony in its entirety.
(See October 8, 2015 Minute Entry.) While denying
Plaintiffs' motion to strike, the Court directed
Plaintiffs to address any inaccuracies in the deposition
transcript through a declaration from Dr. Dayan.
(Id.) However, Plaintiffs never did so. On January
27, 2016, Defendants moved for summary judgment (Dkt. 73.)
discussing Defendants' arguments presented in their
motion for summary judgment, the Court addresses two
preliminary issues raised by Plaintiffs: (1) the
admissibility of Defendants' medical records evidence and
(2) whether Plaintiffs must prove that Perpall's injuries
qualify as “serious injury” under New York
Insurance Law § 5104(a).
ADMISSIBILITY OF EVIDENCE
moving for summary judgment, Defendants rely, in part, on
Perpall's medical records relating to the 2010 accident
and also her pre-2010 medical conditions and treatment.
Plaintiffs assert that these medical records are inadmissible
evidence that the Court should not consider because (1) they
are unsworn and uncertified, and (2) some of them state
“dictated but not read.” (Dkt. 75-2 at ECF 8.) As
discussed below, even though Defendants have failed to comply
with the federal certification requirements for the
medical records, the Court denies Plaintiffs' request to
exclude them from consideration with respect to
Defendants' summary judgment motion.
initial matter, both parties incorrectly cite to New York law
on the issue of whether a defendant may satisfy his burden as
the movant at the summary judgment stage with unsworn reports
by the plaintiff's physicians. (See Dkt. 75-2 at
ECF 8-9; Dkt. 74 at ECF 6-7.) This action is in federal
court, and thus federal procedural and evidentiary rules
apply. See Rand v. Volvo Finance N. Amer., Inc., No.
04-CV-0349, 2007 WL 1351751, at *13 (E.D.N.Y. May 8, 2007)
(collecting cases); Nasrallah v. Helio De, No.
96-CV-8727, 1998 WL 152568, at *3, 7 n.4 (S.D.N.Y. Apr. 2,
1998) (Sotomayor, J.) (rejecting defendants' reliance on
New York case law and instead applying the Federal Rules of
Evidence (“FRE”) and the Federal Rules of Civil
Procedure (“FRCP”)); Williams v. Elzy,
No. 00-CV-5382, 2003 WL 22208349, at *5-6 (S.D.N.Y. Sept. 23,
2003) (rejecting New York's rule that a medical provider
may not rely on unsworn medical reports of others because New
York evidentiary rules are inapplicable in federal court and
noting FRE 703 allows a medical provider to rely on unsworn
reports in forming an opinion); Maxwell v. Becker,
No. 12-CV-864S, 2015 WL 4872137, at *7-8 (W.D.N.Y. Aug. 13,
2015) (“Plaintiff's argument that the medical
records and reports on which Defendant relies in support of
summary judgment must be sworn is premised on the civil
procedure law of New York, which is inapplicable in this
Defendants have submitted in support of their motion,
inter alia, uncertified records from Brookdale
University Hospital Medical Center, Dr. Dayan, Dr.
Katsigiorgis, Dr. Friedman, Dr. Schweitzer, and Dr. Naik that
detail Plaintiff's treatment and care following
Perpall's 2005 accident and the 2010 accident. Because
these records are relevant to the issue of whether
Perpall's claimed injuries were caused or exacerbated by
the 2010 accident or whether they were the result of
pre-existing medical issues, there is preference for their
admission. See Cargill, Inc. v. Sears Petroleum &
Transport Corp., 334 F.Supp.2d 197, 247 (N.D.N.Y. 2004)
(“Because of the preference to have issues and claims
decided on their merits, rather than on the basis of a
procedural shortcoming, the exclusion of otherwise relevant
evidence on technical grounds is generally not favored,
absent compelling circumstances.”); see also
Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 47
(2d Cir. 2015) (citing Sony Corp. v. Elm State Elecs.,
Inc., 800 F.2d 317, 320 (2d Cir. 1986)) (describing the
Second Circuit's “strong preference for resolution
of disputes on their merits” and “preference for
resolving doubts in favor of a trial on the merits”).
object to the admission of some of the medical records on the
basis that they are unsworn or uncertified. However, the
records being unsworn or uncertified, in itself, does not bar
their consideration for purposes of a summary judgment motion
in federal court. FRCP 56(c)(4) no longer requires that a
document referred to in an affidavit or declaration submitted
in support of the motion be sworn or certified. See
Fed. R. Civ. P. 56(c)(4) advisory committee's note to
2010 amendment (“The requirement that a sworn or
certified copy of a paper referred to in an affidavit or
declaration be attached to the affidavit or declaration is
omitted as unnecessary given the requirement in subdivision
(c)(1)(A) that a statement or dispute of fact be supported by
materials in the record.”). A review of the medical
records submitted by Defendants in this case reveals nothing
that would indicate a lack of trustworthiness. “Their
appearance, contents, and substance are what one would expect
of such records and support [Defendants'] claim that they
are what they appear to be.” See Rodriguez,
788 F.3d at 46 (citing, inter alia, FRE 901(b)(4)).
As Defendants point out in their reply, Plaintiffs do not
contest that Perpall consulted with the doctors listed in
those records. (See Dkt. 74, Defendants' Reply
at ECF 8; see also Dkt. 75-2, Pl. Opp.) Indeed,
Plaintiffs themselves submitted to the Court sworn copies of
notes and reports by Dr. Friedman, Dr. Schweitzer, and Dr.
Dayan. (Dkt. 75 at ECF 2.) Comparison of the sworn and
unsworn visit notes of these doctors further confirms that
there is no reason to be concerned about the trustworthiness
of the medical records provided by Defendants.
(Compare Dkt. 73-9, Def. Ex. O with Dkt.
75-15, Pl. Ex. M; compare Dkt. 73-9, Def. Ex. P
with Dkt. 75-12, Pl. Ex. J; compare Dkt.
73-8, Def. Ex. M with Dkt. 75-6, Def. Ex. D.)
the more fundamental admissibility question that
Plaintiffs' certification argument implicates, yet fails
to address, is whether the lack of certification for the
medical records makes them inadmissible as hearsay under the
Federal Rules of Evidence. Courts in this Circuit have
generally held that medical records are admissible under the
business record exception to the hearsay rule, provided that
they satisfy the requirements of FRE 803(6). See Parks v.
Blanchette, 144 F.Supp.3d 282, 292 (D. Conn. 2015)
(finding medical records submitted by defendants in
connection with summary judgment motion would be admissible
under business records exception provided they meet the
requirements of Fed.R.Evid. 803(6)); see also Middleton
v. Rivera, No. 05 Civ. 3145, 2010 WL 4242852, at *8
(S.D.N.Y. Mar. 9, 2010) (“Under Rule 803(6) of the
Federal Rules of Evidence, medical records are considered
business records and as such, are admissible into evidence,
and not considered hearsay.”). “To be admissible
as business records, the documents must have been made near
the time of the recorded event by someone with knowledge and
must have been kept in the course of regularly conducted
business activity.” Parks, 144 F.Supp.3d at
292 (citing Fed.R.Evid. 803(6)(A)-(B)); see also Shea v.
Royal Enterprises, Inc., No. 09 Civ. 8709, 2011 WL
2436709, at *9 (S.D.N.Y. Jun. 16, 2011) (“[I]t has long
been settled law in the federal courts that notations made in
hospital records regarding diagnosis and treatment . . . are
admissible in evidence.” (citation and quotation marks
omitted)). These authenticating facts must be attested to by
the records custodian or other qualified witness through
testimony or “by certifying the records as
self-authenticating in compliance Federal Rule of Evidence
902(11).” Parks, 144 F.Supp.3d at 293;
cf. Gissinger v. Yung, Nos. CV-04-0534,
CV-04-5406, 2007 WL 2228153, at *4 (E.D.N.Y. July 31, 2007)
(holding that “[i]f properly authenticated and created
in the regular course of business contemporaneously with the
occurrence by a person with knowledge, medical records can be
admissible as business records”, and finding submission
of affidavit from doctor who created the medical records was
proper authentication) (citing Hodges v. Keane, 886
F.Supp. 352, 356 (S.D.N.Y. 1995)).
Defendants appear to rely solely on the affidavit of their
counsel to establish the authenticity of the medical records
and their admissibility as business records. (See
Dkt. 73-2.) This affidavit, however, is incompetent for this
purpose, since the attorney does not possess the necessary
knowledge to authenticate the medical records under Rule
803(6), nor does the affidavit even attempt to attest to any
of the Rule 803(6) criteria. Id.; see Hamad v.
Cook, No. 13 Civ. 3222, 2014 WL 3507340, at *7 n.2
(S.D.N.Y. Jun. 30, 2014) (“[The accident report] is
proffered by the affirmation of defendants' counsel, who
neither attempts to lay the required foundation nor is likely
. . . to be competent to do so. This lack of foundation is
yet another reason to deem it inadmissible.”).
Nonetheless, because Plaintiffs rely on reports and notes of
the same doctors-most of whom were Perpall's treating
physicians-and even some of the same reports and notes that
Defendants rely on, the Court will consider the medical
records submitted by Defendants for purposes of their summary
judgment motion. See Parks, 144 F.Supp.3d at 293
(admitting medical records submitted by Defendant, despite
lack of authentication required by Rule 803(6), where
plaintiff relied on defendants' medical records without
objecting to their authenticity (citing cases)); see also
Porter v. Home Depot U.S.A., Inc., No. 12-CV-4595, 2015
WL 128017, *4 (E.D.N.Y. Jan. 8, 2015) (denying
plaintiff's motion in limine as to her
objection to defendant's use of plaintiff's medical
record at trial, noting that “[a]s Plaintiff apparently
intends to offer other medical records kept by the same
physician, the court assumes that the records will be
certified and/or that the parties will stipulate to their
proper admission as business records.”). Though, in
contrast to Parks, Plaintiffs have not relied on all
the medical records submitted by Defendants and have objected
to their admission, the Court finds that Plaintiffs'
reliance on medical records from the same
doctors negates any objection Plaintiffs might
raise to the Court's consideration of Defendants'
medical records. Furthermore, as discussed earlier,
Plaintiffs have offered no reason to question the
authenticity of the medical records submitted by Defendants,
including those of Drs. Katsigiorgis or Naik, whom neither
party retained, but who provided treatment to Plaintiff that
is relevant to the injuries Plaintiff claims in this action.
See Evans v. Consumer Info. & Dispute
Resolution, No. 05-CV-8252, 2006 WL 1209904, at *4 n.5
(S.D.N.Y. May 5, 2006) (considering unsworn medical records
submitted by Plaintiff because nothing indicated lack of
trustworthiness). Lastly, “it is
‘well-established' that ‘even inadmissible
evidence may properly be considered on summary judgment if it
may reasonably be reduced to admissible form at trial.”
Parks, 144 F.Supp.3d at 293 (quoting Bill Salter
Advert., Inc. v. City of Brewton, Ala., 07-0071-WS-B,
2008 WL 1823237, at *4 (S.D. Ala. Jan. 18, 2008)); Corp.
v. Catrett, 477 U.S. 317, 324 (1986) (“We do not
mean that the nonmoving party must produce evidence in a form
that would be admissible at trial in order to avoid summary
judgment.”); Fraser v. Goodale, 342 F.3d 1032,
1036 (9th Cir. 2003) (“At the summary judgment stage,
we do not focus on the admissibility of the evidence's
form. We instead focus on the admissibility of its
contents”), cert. denied, 541 U.S. 937 (2004).
Here, there is nothing to suggest that Defendants would not
be able to obtain for trial the necessary authenticating
testimony or FRE 902(11) certification to satisfy FRE
the Court will consider all of the medical records submitted
by Defendants in support of their motion for summary
NEW YORK'S NO-FAULT LAW & APPLICABILITY OF §
the Court addresses Plaintiffs' assertion that Section
5102(d) of the New York Insurance Law is inapplicable to this
case. (See Dkt. 75-2 at ECF 2-8.) Article 51 of the
New York State's No-Fault Insurance Law (“N.Y. Ins.
Law”) provides that in a personal injury or negligence
action between “covered persons, ” “there
shall be no right of recovery for non-economic loss,
[e.g., pain and suffering, ] except in the case of a
serious injury, or for basic economic loss.” N.Y. Ins.
Law §§ 5104(a), 5102(c). As relevant to
Defendants' argument, a “covered person”
includes “any owner, operator or occupant of, a motor
vehicle which has in effect the financial security required
by article six or eight of the vehicle and traffic law . . .
.” N.Y. Ins. Law § 5102(j). Plaintiffs contend
that N.Y. Ins. Law § 5104(a) does not apply here and
that Perpall therefore need not prove that she suffered
“serious injury” as a result of the 2010 accident
to recover non-economic damages, because: (1) Defendants are
not “covered persons” and (2) Perpall's
injury did not arise from the negligent use or operation of a
“motor vehicle.” As discussed below, these
arguments are patently without merit.
Ins. Law Section 5104(a) applies only if both parties are
so-called “covered persons.” Walsh v. Durkin
Bros., Inc., 981 F.Supp. 267, 270 (S.D.N.Y. 1997). The
parties do not dispute that Perpall is a covered person.
Therefore, in order to be insulated from Plaintiffs'
recovery of non-economic injuries under Section 5104(a),
Defendants must also be “covered persons.”
See Cole v. United States, No. 85-CV-5295, 1986 WL
5805, at *4 (S.D.N.Y. May 16, 1986).
individuals operating or owning motor vehicles lawfully
registered in another state to qualify as “covered
persons” (1) their vehicle must maintain liability
coverage in excess of the minimum coverage required by
Vehicle and Traffic Law § 311(4)(a), and (2) “the
[insurance] policy [must have been] issued by an authorized
insurer or by an unauthorized insurer which has filed a form
consenting to service of process and declaring that its
policy shall be deemed to be varied to comply with the
requirements of Vehicle and Traffic law article 6.”
Marshall v. Nationwide Mut. Ins. Co., 562 N.Y.S.2d
832, 853 (App. Div. 1990); see also Hunter v. OOIDA Risk
Retention Group, Inc., 909 N.Y.S.2d 88, 95 (App. Div.
2010) (noting that Second Department Appellate Division joins
Third and Fourth Departments in finding that drivers of cars
registered out-of-state are “covered persons” if
they are individuals with liability coverage in excess of the
minimum coverage required by Vehicle and Traffic Law §
311(4)(a), and the coverage was issued by an insurer
authorized to do business in New York).
argue, without citing any authority, that Defendants are not
“covered persons” because it is unclear that
Defendants' insurance policy includes coverage of
accidents involving the trailer that was attached to
Defendants' vehicle at the time of the accident. (Dkt.
75-2, Pl. Opp. at ECF 2-3.) But New York State courts have
recognized that N.Y. Ins. Law § 5102(d) applies to cases
where the accident involved a trailer. See,
e.g., Christopher v. Caldarulo, 608
N.Y.S.2d 998 (Sup. Ct. 1994) (injuries caused by a runaway
trailer were considered to have arisen out of the use or
operation of a motor vehicle).
verified that the vehicle involved in the 2010 accident was
insured at the time of the accident, with liability insurance
coverage limits of $1 million through the Progressive
Insurance entity known as United Financial Casualty Company,
and that United Financial Casualty Company was an
“authorized insurer.” (See Dkt. 76,
Defendants' Supplemental Affirmation.) Therefore,
Defendants are “covered person[s]” in this
case. Marshall, 562 N.Y.S.2d at 853.
contend that Section 5102(d) is inapplicable because
Perpall's injuries did not arise out of the use or
operation of a motor vehicle because she was hit by
Defendants' trailer. (Pl. 56.1 at ECF 12 ¶ 3.)
Plaintiffs argue, again without citing any authority, that
Defendants' trailer “is certainly not a
‘motor vehicle.'” (See Dkt. 75-2 at
ECF 5) (emphasis in original).
argument is contradicted by the plain language of Section
311(2) of the New York Vehicle and Traffic Law, which defines
motor vehicles for purposes of Section 311(4)(a) and, in
turn, N.Y. Ins. Law § 5104(a). Section 311(2) explicitly
states that the definition of “motor vehicles”