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Abdulazeez v. Depazarce

United States District Court, S.D. New York

January 9, 2020

Mohamed Imran Abdulazeez, Plaintiff,
v.
Hermann E. Depazarce, Defendant.

          MEMORANDUM AND ORDER

          NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.

         Plaintiff Mohamed Imran Abdulazeez commenced this action on July 28, 2017 to recover damages for personal injuries purportedly sustained in a motor vehicle collision that occurred on the Cross County Parkway on October 30, 2016. Defendant Hermann E. Depazarce, the driver of the vehicle that collided into the rear of plaintiff's vehicle, has moved for summary judgment on the grounds that plaintiff's cervical injuries were not proximately caused by the subject accident and that the other injuries that plaintiff sustained are not “serious injuries” within the meaning of New York's No-Fault Insurance Law.[1]

         For the reasons discussed herein, defendant's motion is granted in part and denied in part.

         I. Background[2]

         This case arises from a three-car motor vehicle accident that occurred between Exits 7 and 8 of the Cross County Parkway at approximately 6:30 p.m. on October 30, 2016. At the time of the accident, plaintiff, who was then 35 years old, was the operator and registered owner of a 2016 Jeep Cherokee. The accident occurred when defendant's rental vehicle, a Chrysler sedan, collided with the rear of plaintiff's vehicle.[3] Due to the impact of the collision, plaintiff claims to have sustained injuries to his cervical spine, lumbar spine, and right wrist.[4]

         A. Post-Accident Medical Treatment

         Plaintiff was transported by ambulance from the scene of the accident to Montefiore Mount Vernon Hospital, where plaintiff reported pain to his neck and back. While at the hospital, plaintiff underwent a physical examination that revealed midline tenderness of plaintiff's neck at ¶ 3-C4. A CT scan of plaintiff's cervical spine showed no acute findings. Plaintiff was discharged that evening with instructions to take cyclobenzaprine as prescribed for his neck and back pain. See Def.'s Ex. I at 19-23. While the amount of work that plaintiff missed in the months following the accident is disputed, the parties agree that plaintiff missed at least one week of work immediately following October 30, 2016.[5] See Def.'s Rule 56.1 ¶ 22.

         On November 28, 2016, due to persistent pain purportedly stemming from the subject accident, plaintiff sought medical attention at St. Mary's Hospital in Waterbury, Connecticut. Pl.'s Rule 56.1 ¶ 58. There, plaintiff was prescribed Naprosyn and Flexeril for his neck pain and muscle spasms and was referred to Peter Zilahy, a chiropractor, for treatment. Pl.'s Rule 56.1 ¶ 63. During plaintiff's first appointment with Dr. Zilahy on December 1, 2016, Dr. Zilahy performed a variety of range of motion tests that revealed multiple restricted ranges of motion to plaintiff's cervical and thoracolumbar spines.[6] See Pl.'s Rule 56.1 ¶¶ 69-73. Plaintiff thereafter underwent approximately four months of conservative therapy treatment with Dr. Zilahy, following which plaintiff continued to experience pain and restricted ranges of motion. Plaintiff ceased seeing Dr. Zilahy in April of 2017, when, according to Dr. Zilahy, plaintiff “had reached his maximum medical improvement with respect to conservative therapy treatment.” Pl.'s Ex. A ¶ 9.

         In February of 2017, prior to concluding treatment with Dr. Zilahy, plaintiff began seeing Dr. Dante Leven, a spinal surgeon. Having concluded that the MRIs that plaintiff obtained at Dr. Zilahy's direction were of poor quality and thus difficult to evaluate, and in light of plaintiff's symptoms and the results of a physical evaluation, Dr. Leven referred plaintiff for an additional MRI of his cervical spine, which plaintiff underwent on March 12, 2017. See Pl.'s Ex. B ¶ 5. The March 12, 2017 MRI revealed, inter alia, a disc herniation at the C4/5 level of plaintiff's cervical spine that was not apparent in the December 19 MRI.[7] Dr. Leven thereafter recommended that plaintiff undergo an anterior cervical discectomy (i.e., cervical spine surgery), which Dr. Leven performed on July 11, 2017. Following that surgery, plaintiff missed approximately three months of work as a manager of a gas station in Hartford, Connecticut.

         B. Prior Injury

         On January 1, 2016, approximately ten months prior to the subject accident, plaintiff was assaulted while working at a gas station. See Def.'s Rule 56.1 ¶¶ 26. Plaintiff testified that he was hit in the face between three and five times and was subsequently admitted to St. Francis Hospital and Medical Center in Hartford, Connecticut. See Def.'s Ex. B at 33-34. On January 2, 2016, a CT scan and x-ray was taken of plaintiff's cervical spine, neither of which contained positive findings. Pl.'s Rule 56.1 ¶¶ 120-21. Following his release from the hospital several hours after being admitted, plaintiff did not seek medical treatment for injuries sustained from the assault. Pl.'s Rule 56.1 ¶ 122.

         II. Procedural History

         Plaintiff originally filed this action in the Supreme Court of the State of New York, Bronx County, against defendants EAN Holdings, LLC (“EAN”), Enterprise Rent-A-Car (“Enterprise”), and Hermann E. Depazarce. On October 4, 2017, EAN and Enterprise, both of whom have been dismissed as defendants in this action, removed the case to this Court.[8] Following an initial conference on November 21, 2017, the parties proceeded to discovery.[9]

         Discovery having concluded, defendant now moves for summary judgment on the grounds that plaintiff did not sustain a “serious injury” under Insurance Law § 5102(d) as a result of the October 30 accident. In opposing defendant's motion, plaintiff maintains that, at a minimum, there is a genuine issue of material of fact as to whether the herniated disc in plaintiff's cervical spine, which allegedly necessitated plaintiff's July 2017 cervical spine surgery, was proximately caused by the October 30 accident.

         Having considered the present record, the Court agrees with plaintiff that there are genuine issues of material fact regarding whether plaintiff's cervical spine injuries are causally related to the October 30 collision. Accordingly, defendant's motion for summary judgment is denied with respect to the issue of proximate cause. Defendant's motion for summary judgment is also denied with respect to plaintiff's claim that he sustained a “serious injury” entitling him to recovery under New York's No-Fault Insurance Law under a theory of either “permanent consequential limitation” or “significant limitation.” Defendant's motion is granted, however, with respect to plaintiff's claim that he sustained a serious injury entitling him to recovery under the “90/180 category” of New York's No-Fault Law.

         III. Legal Standards

         A. Summary Judgment

         Summary judgment is appropriate when the moving party “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 material when it might affect the outcome of the suit under governing law.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted) (quoting Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005)). A factual dispute is genuine if a reasonable factfinder could decide in the nonmoving party's favor. Id.

         At summary judgment, a court must resolve all ambiguities and draw all justifiable inferences in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party must “make a prima facie showing that it is entitled to summary judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If it does so, then there is no issue for trial unless the party opposing summary judgment presents “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249.

         B. New York's No-Fault Law

         A defendant moving for summary judgment in cases governed by New York's No-Fault Law “must establish a prima facie case that plaintiff did not sustain a ‘serious injury' within the meaning of Insurance Law § 5102(d).” Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010) (quoting Barth v. Harris, 00 Civ. 1658 (CM), 2001 WL 736802, at *2 (S.D.N.Y. June 25, 2001). See also Evans v. United States, 978 F.Supp.2d 148, 162-63 (E.D.N.Y. 2013) (“When moving for summary judgment in a case involving the No-Fault Law . . . defendant has the initial burden to make an evidentiary showing that the plaintiff has not sustained a serious injury as a matter ...


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