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Perpall v. Pavetek Corp.

United States District Court, E.D. New York

March 27, 2017



          PAMELA K. CHEN, United States District Judge

         This 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. ¶ 34.)

         Before 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.


         I. LOCAL CIVIL RULE 56.1

         Neither 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. 73-1.)

         In 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).[1] 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, [2] 20, 23, [3] 34[4].)

         Other 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 ECF[5] 18-19[6]; Dkt. 75-2, (“Pl. Opp.”) at ECF 14[7]). 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, [8] and 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 dates.[9]

         The 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 arguments.


         A. Plaintiff's Pre-2010 Lower Back Surgeries

         Prior 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.)

         B. 2005 Accident & Resulting Medical Treatment

         In 2005, Perpall was in a car accident.[10] (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.)

         1. Dr. Irving Friedman

         On July 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 ECF 24.)

         In a 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.[11] 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.)

         Perpall has not pointed to any evidence that she was seen by Dr. Friedman between January 2007 and December 20, 2010.[12]

         2. Dr. Jack Schweitzer[13]

         Perpall 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.)

         3. Dr. Appasaheb Naik

         On May 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.)

         III. DECEMBER 9, 2010 ACCIDENT

         The 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 Dep. 92:4-11.)


         A. Application for no-fault benefits

         On 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.)

         1. Dr. Gus Katsigiorgis (December 15, 2010, to November 26, 2012)

         On 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 37.)

         None of 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).

         2. Dr. Alan Dayan

         On 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 ECF 51.)[14]

         On 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.)

         Then, 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.)

         3. Dr. Friedman[15]

         Dr. 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.)

         On 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 injuries.

         On June 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 ECF 8.)

         Dr. Friedman's May 31, 2013 narrative report[16] 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 repair.” (Id.)

         In a 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.)

         B. Plaintiff's Examination by Defendants' Doctors

         Perpall was examined by Dr. Jeffrey Passick (Def. 56.1 ¶ 10) and Dr. Ashok Anant (Pl. 56.1 ¶ 10) on behalf of the Defendants.[17]

         1. Dr. Jeffrey Passick[18]

         On April 10, 2013, July 10, 2013, and July 29, 2015, [19] 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.)

         2. Dr. Ashok Anant

         On 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.)

         As for 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 studies. (Id.)


         Plaintiffs 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.)


         Before 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).


         In 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.

         As an 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.)[20] 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 court.”).

         Here, 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”).

         Plaintiffs 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.)

         However, 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)).[21]

         Here, 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[22] 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 803(6).[23]

         Accordingly, the Court will consider all of the medical records submitted by Defendants in support of their motion for summary judgment.


         Next, 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).[24] 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.

         A. Covered Person

         N.Y. 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).

         For 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).

         Plaintiffs 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).

         Defendants 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.[25] Marshall, 562 N.Y.S.2d at 853.

         B. Motor Vehicle

         Plaintiffs 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).

         Plaintiff's 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” ...

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