United States District Court, S.D. New York
MEMORANDUM AND ORDER
REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.
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.
reasons discussed herein, defendant's motion is granted
in part and denied in part.
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. Due to the impact of the collision,
plaintiff claims to have sustained injuries to his cervical
spine, lumbar spine, and right wrist.
Post-Accident Medical Treatment
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. See Def.'s Rule 56.1 ¶
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. 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.
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. 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.
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.
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. Following an initial conference on
November 21, 2017, the parties proceeded to
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.
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
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.
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
New York's No-Fault Law
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