Kang v. Romeo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Erin Kang, Sang Ho Lee, and Jung Ja Kwon,

Plaintiffs,

18-cv-4033 (ARR) (SMG)

— against —

Ryan Lee Romeo and Environmental Waste Minimization, Opinion & Order

Defendants.

ROSS, United States District Judge:

This diversity action arose out of a motor vehicle accident that occurred on December 21,

2017 (the “2017 accident”) in Queens, New York. Verified Compl. (“Compl.”) ¶¶ 16, 18–19, ECF

No. 1-1. Plaintiffs Erin Kang (“Kang”), Sang Ho Lee (“Lee”), and Jung Ja Kwon (“Kwon”)

(collectively, “plaintiffs”) commenced this action against defendants Ryan Lee Romeo (“Romeo”)

and Environmental Waste Minimization (“EWM”) (collectively, “defendants”), alleging that

Romeo negligently operated a vehicle owned by EWM, causing him to strike Kang’s vehicle and

seriously injure Kang and her two passengers, Lee and Kwon. Id. ¶¶ 19–20, 23–25, 30–31, 34–36,

41–42, 45–47. Plaintiffs seek to recover damages for their alleged “serious injuries” pursuant to

New York State’s No-Fault Insurance Law (“No-Fault Law”) §§ 5102(d) and 5104.

The instant action was filed in the New York Supreme Court, Queens County on June 18,

2018. Defs.’ Notice of Removal ¶ 1, ECF No. 1. Defendants removed the case to the United States

District Court for the Eastern District of New York on July 13, 2018 pursuant to 28 U.S.C. § 1332.

Id. ¶ 7. Before the court is defendants’ motion for summary judgment pursuant to Federal Rule of

Civil Procedure 56. Plaintiffs oppose. For the reasons set forth below, defendants’ motion is

granted in part and denied in part.

FACTUAL BACKGROUND

I. Plaintiff Kang

Kang, a forty-eight-year-old woman living in the Bronx, New York, drove one of the

vehicles involved in the 2017 accident. Plaintiffs’ Answers to Defendants’ Interrogatories, Defs.’

Ex. NN (“Ans. to Interrogs.”) ¶ 1, ECF No. 32-42; see Plaintiffs’ Supplementary Answers to

Defendants’ Interrogatories, Defs.’ Ex. OO (“Suppl. Ans. to Interrogs.”) 9, ECF No. 32-43. Kang

was involved in at least three motor vehicle accidents prior to the 2017 accident and one subsequent

accident. Defs.’ 56.1 ¶ 1; Pls.’ 56.1 ¶ 1. She filed lawsuits alleging that she sustained serious

injuries as a result of three of the accidents. Defs.’ 56.1 ¶¶ 3, 13, 24; Pls.’ 56.1 ¶¶ 3, 13, 24. She

claims that the 2017 accident aggravated her preexisting injuries from prior car accidents and

caused new injuries. Affidavit of Erin Kang, Pls.’ Ex. C, (“Kang Aff.”) ¶¶ 18–23, ECF No. 38-4.

A. Other Accidents and Injuries1

i. 2000 Accident

Kang was involved in a motor vehicle accident in 2000, in which she sustained head

injuries and a concussion. Defs.’ 56.1 ¶ 44; Pls.’ 56.1 ¶ 44.

ii. 2014 Accident and Lawsuit

On January 17, 2014, Kang was again involved in a motor vehicle accident. Defs.’ 56.1 ¶

2; Pls.’ 56.1 ¶ 2. She filed suit in New York Supreme Court, Queens County, pursuant to the No-

Fault Law for injuries arising from that accident. Defs.’ 56.1 ¶ 3; Pls.’ 56.1 ¶ 3. Kang allegedly

sustained various injuries to her lumbar spine and right knee. Defs.’ 56.1 ¶¶ 8, 22, 29; Pls.’ 56.1

1 Medical experts for both plaintiffs and defendants note that Kang was involved in another car

accident in 1989. See infra Discussion, Part I.B.i; see also Kang Aff. ¶ 20. Kang reportedly

sustained head injuries in the accident. Id. The parties did not include this car accident in their

56.1 statements.

¶¶ 8, 22, 29; Verified Bill of Particulars, Index No. 701309/14, Defs.’ Ex. E (“2014 Bill of

Particulars”) ¶¶ 7, 11, ECF No. 32-7.2 A Magnetic Resonance Imaging (MRI) of Kang’s right knee

conducted on July 30, 2014 indicated that she sustained an “intrasubstance tear of the body of the

medial meniscus, tear of the medial collateral ligament and grade 1 meniscal capsular separation

of the medial meniscus.” Defs.’ 56.1 ¶ 4; Pl.’s 56.1 ¶ 4.

iii. 2015–16 Accident and Lawsuit

On February 4, 2016, Kang filed suit in the Superior Court of New Jersey, Bergen County,

alleging that in December 2015, a negligent driver struck the vehicle in which she was a passenger,

seriously injuring her. Defs.’ 56.1 ¶ 13; Pls.’ 56.1 ¶ 13; Compl., Docket No. L-1185-16 ¶¶ 7, 11,

13, Defs.’ Ex. K, ECF No. 32-13. Kang testified that the injuries she sustained in the 2014 accident

were aggravated by the 2015 accident. Kang Dep. 69:2–70:7, Defs.’ Ex. AA, ECF No. 32-29. She

explained that she was treated for injuries to her right shoulder, neck, and back as a result of the

2015 accident. Id. at 64:22–65:2. Among other procedures, her treatment included physical therapy

for her neck and shoulder three times per week for approximately six months and fifteen

chiropractic treatments. Id. at 65:16–23; Various Medical Records from Dr. Scilaris, Dr. Xie, and

Kang’s Physical Therapy, Defs.’ Ex. P (“Various Kang Med. Recs.”) 7–29, ECF No. 32-18; Defs.’

56.1 ¶ 38; Pls.’ 56.1 ¶ 38.

iv. 2018 Accident and Lawsuit

Following the 2017 accident at issue in this case, Kang was involved in another car accident

on August 13, 2018. She filed her complaint in New York Supreme Court, Bronx County on

2 Erin Kang testified that she also sustained neck injuries from the 2014 accident, which were

aggravated in the 2015 accident. Kang Dep. 69:14–70:7, Defs.’ Ex. AA, ECF No. 32-29 (“A.

Well, the 2014 accident my knee hurt, and my lower back, and my neck. . . . Q. Were they

worsened or aggravated in 2015? A. Yes, it was aggravated.”).

September 9, 2018. Defs.’ 56.1 ¶ 24; Pls.’ 56.1 ¶ 24; Verified Compl., Index No. 30399/2018E

(“2018 Bronx Cty. Compl.”), Defs.’ Ex. Y, ECF No. 32-27. In her complaint, she again alleged

that she “sustained serious injuries as defined by §5102(d) of the Insurance Law of the State of

New York.” 2018 Bronx Cty. Compl. ¶ 24.

B. 2017 Accident

On December 21, 2017, defendant Romeo’s vehicle collided with the vehicle driven by

Kang. See Kang Aff. ¶ 2. Plaintiffs Lee and Kwon were passengers in Kang’s car at the time.

Statement of Additional Material Facts (“Pls.’ 56.1 St. Add. Facts”) ¶ 1, ECF No. 38-13; Defs.’

56.1 Resp. ¶ 1, ECF No. 39-1. The parties dispute the extent of the damage to Kang’s vehicle—

defendants maintain that the driver-side rear wheel well was only scraped, whereas plaintiffs assert

that it was also dented. Defs.’ 56.1 ¶ 46; Pls.’ 56.1 ¶ 46; see Photographs of Kang’s Vehicle, Defs.’

Ex. BB, ECF No. 32-30. No injuries were reported to or observed by the New York Police

Department officers who responded to the scene of the accident. Defs.’ 56.1 ¶ 40; Pls.’ 56.1 ¶ 40.

The parties dispute whether Kang hit her head on the steering wheel as a result of the accident.

Defs.’ 56.1 ¶¶ 42–43; Pls.’ 56.1 ¶¶ 42–43.

i. Alleged Injuries

Kang alleges that as a result of the 2017 accident, she sustained injuries to her head, left

shoulder, right knee, lumbar spine, and cervical spine. Pls.’ 56.1 St. Add. Facts ¶ 2. According to

Kang, only the injuries to her left shoulder and head were originally caused by the 2017 accident.

Kang Aff. ¶ 23. She alleges that the lumbar spine and right knee injuries she sustained from her

2014 accident were aggravated by the 2017 accident. Kang Aff. ¶¶ 18, 24. Likewise, she contends

3 Plaintiffs append a Statement of Additional Material Facts to their Response to Defendants’

56.1 Statement, beginning on page 10 of the same document.

that she originally injured her cervical spine in the 2015 accident, but that the 2017 accident

aggravated her injury. Id. ¶¶ 19, 24. She states that the 2017 accident was the direct cause of her

head injuries, but also contends that it aggravated her previously diagnosed bipolar disorder. Id. ¶

21.

Kang, drawing on her doctors’ and radiologists’ reports, set forth an extensive list of

alleged injuries without identifying which she deemed to be serious and / or permanent:

Head

• Global cortical atrophy predominantly involving the frontal and occipital lobes

with bilateral clustered involvement of the parahippocampal entorhinal region;

• Global FA4 reduction;

• Numerous foci of abnormal increased [T]2/FLAIR5 signal within the white

matter6 [of] both cerebral hemispheres.

Left Shoulder

• Cuff tendinosis and / or tendonitis;

• Impingement and supraspinatus outlet syndrome;

• Effusion;

• Synovitis;

• Hypoplastic partially torn labrum.

Right Knee

• Partial [anterior cruciate ligament (ACL)] tear;

• Effusion;

• Meniscocapsular separation laterally;

• Bone island inflammation;

4 Presumably referring to fractional anisotropy, a measurement used in Diffusion Tensor Imaging

(DTI) studies. Fractional Anisotropy, ScienceDirect,

https://www.sciencedirect.com/topics/neuroscience/fractional-anisotropy (last visited Aug. 11,

2020).

5 T2-weighted Fluid Attenuated Inversion Recovery (T2-FLAIR or T2/FLAIR), a brain imaging

technique.

6 Dr. Golzad, medical expert for plaintiff, defines “white matter” as “the fiber connections

enabling approximately 86 billion electrical brain cells or neurons to communicate.” Report of

Dr. Golzad, Pls.’ Ex. E (“Kang Golzad Rep.”) 11, ECF No. 38-6. He explains that “[w]hite

matter injuries disrupt ‘neuronal connectivity’ and the brain’s ability to communicate among its

functional units.” Id.

• Distal femur;

• Myxoid degeneration posterior horn medial meniscus;

• Superficial varicose veins;

• Some lateral patellar tilt and subluxation;

• No other internal derangement.

Cervical Spine

• Patulous internal jugular veins;

• Heterogenous thyroid gland;

• C5-C67 bilobed 7mm disc herniation with ventral and bilaterally lateral recesses

spinal stenosis;

• Thickened wavy nuchal ligament.

Lumbar Spine

• Straightening of the lumbar lordosis;

• Transitional vertebrae at lumbosacral junction;

• No other focal internal derangement.

Pls.’ 56.1 St. Add. Facts ¶ 3; Ans. to Interrogs. ¶ 4; Various Kang MRI Reports 2–4, Pls.’ Ex. D,

ECF No. 38-5 (head)8; Report of Dr. Golzad (“Kang Golzad Rep.”) 7, Pls.’ Ex. E, ECF No. 38-6

(head); Various Kang MRI Reports 6 (left shoulder); id. at 5 (right knee); id. at 7–8 (cervical

spine); id. at 9–10 (lumbar spine); Report of Dr. Seldes, Pls.’ Ex. A (“Kang Seldes Rep.”) 10,

ECF No. 38-2 (left shoulder, right knee, lumbar spine, and cervical spine).

The parties agree that Kang was confined to her home for one week after the accident and

one week after each of her right knee and left shoulder arthroscopic surgeries. Defs.’ 56.1 ¶ 53;

Pls.’ 56.1 ¶ 53. They disagree, however, as to the lasting impact of her injuries. Kang alleges that

because of the 2017 accident, she can no longer jog and has difficulty performing various tasks,

7 Referring to the fifth and sixth cervical vertebrae. See Irvine v. U.S. Dep’t of Veterans Affs., No.

3:14–cv–00197–HZ, 2015 WL 5919878, at *1 (D. Or. Oct. 8, 2015). A similar abbreviation is

used to identify particular vertebrae of the lumbar, thoracic, and cervical spine throughout this

opinion.

8 Although all of the MRI reports in this case are unsworn, they are relied upon by various sworn

medical opinions. Accordingly, I consider them competent evidence here. See Pommes v. Perez,

830 N.E.2d 278, 285 n.5 (N.Y. 2005).

such as lifting her son, sleeping on her left side, holding items with her left arm, completing

household chores, standing, walking, or sitting for extended periods of time, kneeling, using a

computer, reading a book, using stairs, and lifting heavy items. Pls.’ 56.1 St. Add. Facts ¶¶ 46–

47; Kang Aff. ¶¶ 28–29. She also reports “frequent headache, insomnia, loss of memories and

sensitivity to light.” Kang Aff. ¶ 29. Defendants argue, however, that these restrictions are due to

Kang’s preexisting and degenerative conditions, not the 2017 accident. Defs.’ 56.1 Resp. ¶¶ 46–

47.

Kang was not employed at the time of the 2017 accident, and thus, was not prevented

from working as a result of her alleged injuries. Defs.’ 56.1 ¶ 54; Pls.’ 56.1 ¶ 54. She has

collected Social Security Disability Income (SSDI) since age 25, when she was designated

disabled due to bipolar disorder, a condition for which she was frequently hospitalized prior to

the 2017 accident. Defs.’ 56.1 ¶¶ 45, 55; Pls.’ 56.1 ¶¶ 45, 55.

ii. Treatment

Although the accident occurred on December 21, 2017, Kang reports that she first sought

treatment for most of her alleged injuries on January 10, 2018. Pls.’ 56.1 ¶ 41; Kang Aff. ¶ 4. The

record indicates that she did not seek treatment for her alleged head injuries until September 26,

2018, over nine months after the accident. Kang Aff. ¶ 6; Kang Golzad Rep. 6. The parties agree

that Kang underwent the following treatments or procedures, but dispute whether they were

necessitated by the 2017 accident or preexisting and degenerative conditions:

Head

• MRI conducted October 2, 2018. Pls.’ 56.1 St. Add. Facts ¶ 10.9

9 Defendants’ objections to plaintiffs’ paragraphs nine through fourteen appear to be mis-

numbered. Thus, I admit plaintiffs’ assertions regarding the occurrence and date of the various

MRIs. Defs.’ 56.1 Resp. ¶¶ 9–14.

Left Shoulder

• Arthroscopic surgery dated April 9, 2018. Id. ¶¶ 4–5; Defs.’ 56.1 Resp. ¶¶ 4–5;

see also Report of Dr. Gidumal (“Kang Gidumal Rep.”) 3–4, ECF No. 33-2.

• MRI conducted February 5, 2018. Pls.’ 56.1 St. Add. Facts ¶ 11.

Right Knee

• Arthroscopic surgery dated July 9, 2018. Kang Gidumal Rep. 4; Kang Seldes Rep.

10.

• MRI conducted May 22, 2018. Id. ¶ 12.

Cervical Spine

• Cervical percutaneous discectomy, nuclear ablation, and annular modulation

procedure on the C5–C6 dated July 14, 2018. Pls.’ 56.1 St. Add. Facts ¶ 6; Defs.’

56.1 Resp. ¶ 6.10

• Trigger point injection “on the back area” dated February 7, 2018. Pls.’ 56.1 St.

Add. Facts ¶ 7; Defs.’ 56.1 Resp. ¶ 7.

• C7-T1 epidural injection and cervical epiduralgram on the cervical spine dated

May 17, 2018. Pls.’ 56.1 St. Add. Facts ¶ 7; Defs.’ 56.1 Resp. ¶ 7.

• MRI conducted January 26, 2018. Pls.’ 56.1 St. Add. Facts ¶ 13.

Lumbar Spine

• MRI conducted January 26, 2018. Id. ¶ 14.

General Treatment

• Physical therapy, acupuncture, and chiropractic treatment from January 10, 2018

to May 10, 2019. Pls.’ 56.1 St. Add. Facts ¶ 8; Defs.’ 56.1 Resp. ¶ 8.

II. Plaintiff Lee

Lee is a sixty-eight-year-old man who was a passenger in Kang’s car during the 2017

accident. Affidavit of Sang Ho Lee (“Lee Aff.”) ¶ 2, Pls.’ Ex J, ECF No. 38-11; see MRI Report

of Dr. Solomon (“Lee 2018 MRI Rep.”) 2, Pls.’ Ex. K, ECF No. 38-12.

A. Alleged Injuries

Lee alleges that he sustained injuries to his left knee, cervical spine, and lumbar spine as a

result of the 2017 accident, none of which predated the accident. Pls.’ 56.1 St. Add. Facts ¶ 80;

10 Although defendants deny plaintiffs’ statements of fact without qualification in paragraphs six

through nine, their objection implies that they do not dispute that the procedure occurred, but

rather, that the procedure was required as a result of the 2017 accident.

Lee Aff. ¶¶ 11–13, ECF No. 38-11. Specifically, he attributes the following injuries to the accident:

Left Knee

• Meniscal tear;

• Partial ACL tear;

• Joint effusion;

• Patella alta;

• Meniscocapsular separation laterally.

Cervical Spine

• Multilevel facet arthrosis and ligamentum flavum hypertrophy with lateral recess

and neural foraminal narrowing;

• Thickened wavy nuchal ligament;

• Prominent adenoids and palatine tonsils;

• Straightening;

• Multilevel loss of discal height and signal;

• C3-C4–C6-C7 central and diffuse 8mm disc herniations with central spinal

stenosis.

Lumbar Spine

• Transitional vertebrae at lumbosacral junction;

• Suggested sacral meningocele;

• Grade I and II spondylolisthesis at L5-S1;

• L5-S1 loss of discal height and signal with endplate changes;

• L5-S1 diffuse disc herniation with central, bilateral lateral recesses and neural

foraminal stenosis when combined with facet arthrosis and ligamentum flavum

hypertrophy.

Pls.’ 56.1 St. Add. Facts ¶ 81; Ans. to Interrogs. ¶ 4; Lee 2018 MRI Rep. 2 (left knee), 3–

4 (lumbar spine), 5–6 (cervical spine); Report of Dr. Scilaris (“Lee Scilaris Rep.”) 9–10, Pls.’ Ex.

I, ECF No. 38-10. Defendants maintain that Lee sustained no acute injuries from the accident, but

rather that he suffers from degenerative conditions in his knee, cervical, and lumbar spine. Defs.’

Br. 30–31.11

Lee states that his injuries prevent him from working in a sushi store. Lee Aff. ¶ 17.

11 Once again, defendants’ objections appear to be mis-numbered, making it difficult to evaluate

defendants’ objections on the merits. See, e.g., Defs.’ 56.1 Resp. ¶¶ 80–82.

Nevertheless, both parties agree that Lee has not been totally restricted from working as a

restaurant owner and operator due to the accident. Defs.’ 56.1 ¶ 51; Pls.’ 56.1 ¶ 51. Lee was

confined to his residence for five days following the 2017 accident, plus an additional one week

after his March 16, 2018 arthroscopy. Defs.’ 56.1 ¶ 50; Pls.’ 56.1 ¶ 50. Additionally, Lee avers

that he has difficulty performing certain tasks, such as climbing stairs, squatting, and sitting,

standing, or walking for an extended period of time. Lee Aff. ¶ 17.

B. Treatment

Following the 2017 accident, records indicate that Lee did not seek medical treatment for

approximately three weeks. His first recorded medical visit relating to the accident was on January

15, 2018. Report of Dr. Gidumal (“Lee Gidumal Rep.”) 4, ECF No. 33-4.12 Thereafter, Lee’s

treatment included:

Left Knee

• MRI conducted on January 26, 2018. Lee 2018 MRI Rep. 2.

• Left knee arthroscopy conducted on March 16, 2018. Lee Aff. ¶ 5.13

Cervical Spine

• MRI conducted on February 16, 2018. Lee 2018 MRI Rep. 5–6.

• Trigger point injection of the left levator scapula, capitis, and upper trapezius

muscles dated February 21, 2018. Lee Various Medical Records 16, Defs.’ Ex.

MM, ECF No. 32-41.

12 Lee maintains that he was first treated at Baarn Rehab and Pain Clinic on January 10, 2018

and was treated three times per week there from January 10, 2018 to March 15, 2018, and from

December 18, 2018 to March 11, 2019. See Lee Aff. ¶ 4. He presents no evidence to that effect.

13 Lee did not submit medical records from Dr. Wert indicating that this procedure occurred.

Although Dr. Scilaris references this procedure in his report, his knowledge is based on Lee’s

statements. Lee Scilaris Rep. 10 (explaining that “[Lee] states he underwent the left knee

arthroscopy performed by Dr. Wert on March 16, 2018, which did provide significant relief of

his symptoms.”). Although defendants object to this fact, see Pls.’ 56.1 St. Add. Facts ¶ 82;

Defs.’ 56.1 Resp. ¶ 82, they themselves referenced Lee’s arthroscopic surgery in their statement

of facts, Defs.’ 56.1 ¶ 50 (stating that “[p]laintiff Lee was confined to his residence for 5 days

after December 21, 2017 and 1 week after arthroscopy of March 16, 2018.”); Pls.’ 56.1 ¶ 50.

Thus, I consider this fact admitted for the purposes of this motion.

Lumbar Spine

• MRI conducted on February 16, 2018. Lee 2018 MRI Rep. 3–4.

• Trigger point injection on January 24, 2018. Pls.’ 56.1 St. Add. Facts ¶ 84; Defs.’

56.1 Resp. ¶ 84;14 Lee Various Medical Records 10.

General Treatment

• Electromyography (EMG) and nerve conduction velocity (NCV) test of the lower

extremity conducted on February 28, 2018.15 Lee Gidumal Rep. 2–3.

III. Plaintiff Kwon

Kwon is a sixty-five-year-old woman who was a passenger in Kang’s car during the 2017

accident. Defs.’ 56.1 ¶ 48; Pls.’ 56.1 ¶ 48.

A. Alleged Injuries

Kwon alleges that as a result of the 2017 accident, she sustained injuries to her right

shoulder, right ankle, cervical spine, lumbar spine, and thoracic spine. Pls.’ 56.1 St. Add. Facts ¶

48. Defendants maintain that Kwon’s injuries are degenerative and thus, not caused by the 2017

accident. Defs.’ 56.1 Resp. ¶ 48. Specifically, Kwon asserts that she sustained the following

injuries:

Right Shoulder

• Bicep tendonitis and partial tearing;

• Biceps tenosynovitis;

14 Defendants’ response to plaintiff appears to be mis-numbered; from context, I have inferred

that defendants do not deny that the January 2018 trigger point injection took place, despite this

error.

15 The NCV test measures the speed at which an electrical impulse moves through a patient’s

nerve and is often used to identify nerve damage. The EMG test, which is administered at the

same time, helps to identify damage to the nerves and muscles. Nerve Conduction Studies, Johns

Hopkins Med., https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/nerve-

conduction-studies (last visited Aug. 11, 2020). Both are considered “objective tests” for the

purposes of the No-Fault Law. Mastrantuono v. United States, 163 F. Supp. 2d 244, 255

(S.D.N.Y. 2001) (citing Rookwood v. Valdez, No. 99 Civ. 10285, 2001 WL 776939, at *4

(S.D.N.Y. July 11, 2001) and Gillick v. Knightes, 719 N.Y.S.2d 335, 336 (App. Div. 2001)); see

Rivera v. United States, No. 10 Civ. 5767(MHD), 2012 WL 3132667, at *20 (S.D.N.Y. July 31,

2012).

• Impingement;

• Cuff tendinosis, tendinitis, and intrasubstance tearing;

• Synovitis;

• Joint fluid;

• Ganglion and/or synovial cysts;

• Partial labral tear.

Right Ankle

• Nonspecific signal abnormality of distal tibia;

• Achilles tendinosis and/or tendonitis;

• Joint effusion;

• Joint space narrowing.

Cervical Spine

• Thickened wavy nuchal ligament;

• Reversal of lordosis;

• Prominent adenoids and palatine tonsils;

• C3-C4 loss disc height and signal with 5 mm central and left paracentral disc

herniation with central and left lateral recess spinal stenosis.

Lumbar Spine

• Dural ectasia;

• Transitional vertebrae at lumbosacral junction;

• Lower thoracic disc disease;

• Multilevel discal T2-weighted signal loss;

• L1-L2–L3–L4 and L5-S1 moderate diffuse disc bulging with thecal sac

compression and bilateral neural foraminal narrowing when combined with facet

arthrosis and ligamentum flavum hypertrophy.

Thoracic Spine

• T1-T2–T3-T4 and T5-T6–T8-T9 disc bulging;

• Biconcave vertebrae;

• Heterogeneous marrow signal;

• Cervical localizer revealing straightening.

Pls.’ 56.1 St. Add. Facts ¶ 49; Ans. to Interrogs. ¶ 4; Kwon Various MRI Reports, Pls.’ Ex.

H (“Kwon MRI Rep.”) 2–3 (lumbar spine), 4–5 (thoracic spine), 6 (right ankle), 7 (right shoulder),

8 (cervical spine), ECF No. 38-9; Report of Dr. Scilaris (“Kwon Scilaris Rep.”) 8–10, Pls.’ Ex. F,

ECF No. 38-7.

Kwon was confined to her residence for five days following the accident and an additional

three days after her subsequent arthroscopy. Defs.’ 56.1 ¶ 48; Pls.’ 56.1 ¶ 48. Both parties agree

that Kwon’s injuries did not totally prevent her from working as a restaurant owner and operator.

Defs.’ 56.1 ¶ 49; Pls.’ 56.1 ¶ 49. Kwon alleges, however, that she can no longer play tennis and

has difficulty with a variety of everyday tasks, including lifting heavy items, standing, sitting, or

walking for an extended period of time, and doing household chores. Affidavit of Jung Ja Kwon,

Pls.’ Ex. G (“Kwon Aff.”) ¶ 19, ECF No. 38-8.

B. Treatment

Allegedly as a result of the accident, Kwon’s treatment included the following procedures:

Right Shoulder

• MRI conducted on January 26, 2018. Kwon Scilaris Rep. 8.

• Right shoulder arthroscopic surgery conducted March 16, 2018. Id. at 9–10.

Right Ankle

• MRI conducted on January 26, 2018. Id. at 9.

• Lidocaine and Kenalog injection administered on February 5, 2018. Kwon Aff. ¶

6; Kwon Scilaris Rep. 9.

Cervical Spine

• MRI conducted February 16, 2018. Kwon Scilaris Rep. 9.

Lumbar Spine

• MRI conducted February 16, 2018. Id.

Thoracic Spine

• MRI conducted March 2, 2018. Id.16

LEGAL STANDARD

I. Summary Judgment

To prevail on a motion for summary judgment the movant must show “that there is no

genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.”

16 Like Lee, Kwon maintains that she was treated three times per week at Baarn Rehab and Pain

Clinic from January 10, 2018 to March 15, 2018, and later from December 18, 2018 to March

11, 2019. Kwon Aff. ¶ 4. She also has adduced no evidence of these visits.

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The

movant bears the burden of demonstrating the absence of a question of material fact. In making

this determination, the court must view all facts “in the light most favorable” to the non-moving

party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). If the movant fails to meet its

initial burden, the motion will fail even if the opponent does not submit any evidentiary matter to

establish a genuine factual issue for trial. BBS Norwalk One, Inc. v. Raccolta, Inc., 117 F.3d 674,

677–78 (2d Cir. 1997).

If the movant meets its burden, “the nonmoving party must come forward with

admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary

judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). In doing so, the

opposing party must come forward with sufficient evidence that would justify a reasonable jury

in returning a verdict in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986). If “the party opposing summary judgment propounds a reasonable

conflicting interpretation of a material disputed fact,” summary judgment must be denied.

Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9–10 (2d Cir. 1983).

In determining whether there are genuine issues of material fact, a court is “required to

resolve all ambiguities and draw all permissible factual inferences in favor of the party against

whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)

(quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). “A party asserting that a fact . . . is

genuinely disputed must support the assertion by . . . citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1).

II. No-Fault Law

Plaintiffs’ claims are governed by New York’s No-Fault Law, “which precludes recovery

for non-economic loss arising out of negligence in the use or operation of an automobile except

where the claimant has a serious injury.” Jones v. United States, 408 F. Supp. 2d 107, 115

(E.D.N.Y. 2006) (citing N.Y. Ins. Law § 5102(a) (McKinney 2000)). Under the No-Fault Law,

“serious injury” is defined as follows:

a personal injury which results in death; dismemberment; significant

disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ,

member, function or system; permanent consequential limitation of use of a body

organ or member; significant limitation of use of a body function or system; or a

medically determined injury or impairment of a non-permanent nature which

prevents the injured person from performing substantially all of the material acts

which constitute such person’s usual and customary daily activities for not less

than ninety days during the one hundred eighty days immediately following the

occurrence of the injury or impairment.

N.Y. Ins. Law § 5102(d) (McKinney 2017). To recover for non-economic losses under

the No-Fault Law, plaintiffs must show both that they sustained a serious injury and that the

injury was “proximately caused by the accident at issue.” Evans v. United States, 978 F. Supp.

2d 148, 164 (E.D.N.Y. 2013) (quoting Carter v. Full Serv., Inc., 815 N.Y.S.2d 41, 43 (N.Y. App.

Div. 2006)); see N.Y. Ins. Law § 5104(a) (“Notwithstanding any other law, in any action by or

on behalf of a covered person against another covered person for personal injuries arising out of

negligence in the use or operation of a motor vehicle in this state, there shall be no right of

recovery for non-economic loss, except in the case of a serious injury[.]”).

A. Causation

“[W]hen additional contributory factors interrupt the chain of causation between the

accident and claimed injury—such as a gap in treatment, an intervening medical problem or a

preexisting condition—summary dismissal of the complaint may be appropriate.” Pommells v.

Perez, 830 N.E.2d 278, 281 (N.Y. 2005). “With respect to pre-existing injuries, . . . defendant[s]

moving for summary judgment [are] required to submit ‘persuasive evidence’ as to the existence

of the plaintiff[s’] pre-existing injuries.” Evans, 978 F. Supp. 2d at 164 (citing Arenes v.

Mercedes Benz Credit Corp., No. 03 CV 5810 (NG) (MDG), 2006 WL 1517756, at *8

(E.D.N.Y. June 1, 2006), and Pommells, 830 N.E.2d at 287). If defendants meet their burden,

then the burden shifts to plaintiffs to “come forward with evidence addressing the defendant[s’]

claimed lack of causation[.]” Id. (quoting Arenes, 2006 WL 1517756, at *8 and Pommells, 830

N.E.2d at 287). Defendants are entitled to summary judgment if plaintiffs fail to demonstrate a

genuine dispute of fact with regard to causation. Id. (citing Arenes, 2006 WL 1517756, at *8, and

Pommells, 830 N.E.2d at 287).17

Conclusory assertions that the relevant accident caused plaintiffs’ injuries are inadequate

to meet plaintiffs’ burden. Arenes, 2006 WL 1517756, at *7 (“Where . . . the plaintiff’s evidence

is limited to conclusory assertions by a treating physician that are tailored to meet statutory

requirements, summary judgment should be granted for the defendant.”); Watson-Tobah v. Royal

Moving & Storage Inc., No. 13-cv-7483 (KBF), 2014 WL 6865713, at *13 (S.D.N.Y. Dec. 5,

2014) (“The law is clear that a conclusory expert opinion as to causation is insufficient to defeat

a motion for summary judgment.”); Rhone v. United States, No. 04 Civ. 5037 (PKL), 2007 WL

3340836, at *9 (S.D.N.Y. Nov. 9, 2007) (expert medical opinions that do not address defendant’s

evidence that injuries were degenerative or explain the basis for finding causation are

inadequate); Carter, 815 N.Y.S.2d at 43 (“[I]n the absence of an explanation of the basis for

17 The Second Circuit has indicated that district courts should apply New York’s burden-shifting

framework, despite its apparent tension with the Celotex summary judgment standard. Perpall v.

Pavetek Corp., 12-CV-0336 (PKC), 2017 WL 1155764, at *12 n.27 (E.D.N.Y. Mar. 27, 2017)

(citing Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010) (per curiam)); see also Rogers v.

McLamb, No. 4-CV-7043, 2006 WL 2734228, at *3 n.2 (S.D.N.Y. Sept. 22, 2006) (adopting

New York’s burden-shifting scheme, while acknowledging its tension with Celotex).

concluding that the injury was caused by the subject accident, and not by other possible causes

evidenced in the record, an expert’s ‘conclusion that plaintiff’s condition is causally related to

the subject accident is mere speculation’ insufficient to support a finding that such a causal link

exists.” (quoting Montgomery v. Pena, 798 N.Y.S.2d 17, 18 (N.Y. App. Div. 2005))); see also

Gay v. Cevallos, No. 10 Civ. 949 (LMM), 2011 WL 2015528, at *5 (S.D.N.Y. May 17, 2011)

(same) (citing Valentin v. Pomilla, 873 N.Y.S.2d 537, 539–40 (N.Y. App. Div. 2009)); cf.

Farook v. Bailey, No. 05 Civ. 3785 LTS DF, 2007 WL 2076764, at *3 (S.D.N.Y. July 16, 2007)

(expert medical opinion was not speculative where it “specifically discusse[d] the pre-accident

evidence proffered by Defendants in reaching the conclusion that the [relevant] accident caused

Plaintiff’s injury, rather than an earlier accident”). Additionally, a plaintiff’s self-serving and

conclusory statements regarding causation are insufficient to raise a triable issue of fact if not

corroborated by objective medical evidence. Watson-Tobah, 2014 WL 6865713, at *11 (citing

Carter, 815 N.Y.S.2d at 43); Rhone, 2007 WL 3340836, at *9 (same).

B. Serious Injury

As with the issue of causation, “[o]n a motion for summary judgment on the issue of

serious injury, ‘a defendant has the initial burden of establishing a prima facie case that the

plaintiff’s injuries are not serious.’” Black v. United States, No. 1:17-cv-01054, 2020 WL

1435092, at *4 (W.D.N.Y. Mar. 24, 2020) (quoting Sanchez v. Travelers Cos., 658 F. Supp. 2d

499, 507 (W.D.N.Y. 2009)). “A defendant may satisfy this burden by providing a physician’s

report that concludes, based upon objective evidence, that the plaintiff either has no injuries or

has recovered from them.” Id. (quoting Brusso v. Imbeault, 699 F. Supp. 2d 567, 576 (W.D.N.Y.

2010)). A defendant may rely on unsworn reports from plaintiff’s physicians or sworn affidavits

or affirmations by the defendant’s retained physicians. Evans, 978 F. Supp. 2d at 163 (citing

Thomas v. O’Brien, No. 08-CV-3250 (RLM), 2010 WL 785999, at *7 (E.D.N.Y. Feb. 26,

2010)).

“The burden then shifts to the plaintiff to come forward with objective evidence that she

suffered a serious injury within the meaning of the no-fault law.” Black, 2020 WL 1435092, at

*4 (citing Brusso, 699 F. Supp. 2d at 576). Plaintiff’s subjective complaints of pain, without

more, are insufficient to satisfy this burden. Bass v. Hout, 13 Civ. 8516 (ER), 2019 WL 6527944,

at *4 (S.D.N.Y. Dec. 4, 2019). “Such objective proof can include ‘an expert’s designation of a

numeric percentage of a plaintiff’s loss of range of motion’ or ‘an expert’s qualitative assessment

of a plaintiff’s condition,’ so long as the qualitative assessment is objective and ‘compares the

plaintiff’s limitations to the normal function, purpose, and use of the affected body organ,

member, function or system.’” Id. (quoting Toure v. Avis Rent A Car Sys. Inc., 774 N.E.2d 1197,

1200 (N.Y. 2002)). “‘As long as the plaintiff adduces sufficient objective evidence from which a

jury could find that she sustained a serious injury, summary judgment must be denied

‘notwithstanding some contrary probative evidence.’” Evans, 978 F. Supp. 2d at 163 (quoting

Rivera v. United States, No. 10 Civ. 5767(MHD), 2012 WL 3132667, at *10 (S.D.N.Y. July 31,

2012)).

To meet plaintiff’s burden of demonstrating serious injury, unsworn medical reports are

not admissible evidence. Id. at 163 (citing Robinson v. United States, No. 02 Civ. 5166DF, 2005

WL 747039, at *6 (S.D.N.Y. Mar. 31, 2005)). Nevertheless, “attached reports to physician

affidavits including unsworn MRI reports interpreted by the physician’s affidavit are considered

admissible evidence.” Id. at 164 (citing Alvarez v. East Penn Mfg. Co., No. 10 Civ. 09541(RKE),

2012 WL 4094828, at *5 (S.D.N.Y. Sept. 17, 2012) (“[T]o the extent the experts incorporated

into their affirmations several unsworn reports of other doctors who examined plaintiff, these

unsworn reports were not the only evidence submitted by plaintiff in opposition to the motion,

and may be considered to deny a motion for summary judgment.” (quoting Rivera v. Super Star

Leasing, Inc., 868 N.Y.S.2d 665, 666 (N.Y. App. Div. 2008)) (internal brackets omitted))).

In the instant case, plaintiffs did not allege injuries causing “death; dismemberment;

significant disfigurement; a fracture; [or the] loss of a fetus[.]” This motion, therefore, addresses

the following four categories of serious injury:

permanent loss of use of a body organ, member, function or system; permanent

consequential limitation of use of a body organ or member; significant limitation

of use of a body function or system; or a medically determined injury or

impairment of a non-permanent nature which prevents the injured person from

performing substantially all of the material acts which constitute such person’s

usual and customary daily activities for not less than ninety days during the one

hundred eighty days immediately following the occurrence of the injury or

impairment.18

N.Y. Ins. Law § 5102(d) (McKinney 2017); see Defs.’ Br. 40; Pls.’ Br. 5, ECF No. 38-13.

i. Permanent loss of use of a body organ, member, function or system

“In order to establish a ‘permanent loss of use of a body organ, member, function, or

system’ under § 5102(d), a plaintiff must show that the loss is a total loss.” Evans, 978 F. Supp.

2d at 165 (citing Oberly v. Bangs Ambulance Inc., 751 N.E.2d 457, 460 (2001) (“We hold that to

qualify as a serious injury within the meaning of the statute, ‘permanent loss of use’ must be

total.”)); Lopez v. United States, 312 F.Supp.3d 390, 400 (S.D.N.Y. 2018) (same).19

ii. Permanent consequential limitation of use of a body organ or member

To demonstrate a “permanent consequential limitation of use of a body organ or

member,” a plaintiff must “demonstrate more than ‘a mild, minor or slight limitation of use.’”

18 Commonly referred to as the “90/180 standard.” Bass, 2019 WL 6527944, at *4.

19 Because plaintiffs’ evidence does not show a permanent loss of use for any body part, I do not

address this category further in this opinion.

Evans, 978 F. Supp. 2d at 165 (quoting Katiraeifar v. Santrizos, 1999 WL 425907, at *1 (2d Cir.

1999)). “Indeed, ‘consequential limitation’ instead means an important and qualitative limitation

of use of a body part based on normal function, purpose and use of that body part.” Id. (citing

Toure, 774 N.E.2d at 1201, and Dwyer v. Tracey, 480 N.Y.S.2d 781, 783 (N.Y. App. Div.

1984)). “A tear in tendons, as well as a tear in a ligament, or a bulging disc is not evidence of a

serious injury in the absence of objective evidence of the extent of the alleged physical

limitations resulting from the injury and its duration.” Young Sung Lee v. Garvey, 718 F. App’x

11, 15 (2d Cir. 2017) (quoting Little v. Locoh, 897 N.Y.S.2d 183, 184 (N.Y. App. Div. 2010),

cert. denied, 139 S. Ct. 209 (2018)); see also Mulligan v. City of N.Y., 993 N.Y.S.2d 24, 26 (N.Y.

App. Div. 2014). “Further, ‘[p]ermanence’ in this context ‘is a medical determination that

requires an objective basis, and mere repetition of the word “permanent” in a medical report is

insufficient.’” Evans, 978 F. Supp. 2d at 165 (quoting Alvarez, 2012 WL 4094828, at *5).

iii. Significant limitation of use of a body function or system

Similarly, “whether a limitation of use or function is significant . . . (i.e., important)

relates to medical significance and involves a comparative determination of the degree or

qualitative nature of an injury based on the normal function, purpose and use of the body part.”

Bass, 2019 WL 6527944, at *4 (quoting Toure, 774 N.E.2d at 1201) (internal quotations and

alterations removed). “A ‘significant’ injury is one that results in ‘more than a minor limitation

of use.’” Id. (quoting Young Sung Lee, 718 F. App’x at 15). The significant limitation must also

be supported by “credible medical evidence of an objectively measured and quantified medical

injury or condition.” Evans, 978 F. Supp. 2d at 166 (quoting Oved v. Salotti, No. 98Civ.5628

(BSJ), 2000 WL 1099926, at *1 (S.D.N.Y. Aug. 7, 2000)).

“While proof of permanence is not required, plaintiff must show a limitation that is

significant in terms of duration as well as degree.” Hodder v. United States, 328 F. Supp. 2d 335,

354–55 (E.D.N.Y. 2004) (citing Partlow v. Meehan, 548 N.Y.S.2d 239, 240 (N.Y. App. Div.

1989) (holding that, “[a]though Insurance Law § 5102(d) does not expressly set forth any

temporal requirement for a ‘significant limitation,’ . . . if a bodily limitation is substantial in

degree yet only fleeting in duration, it should not qualify as a ‘serious injury’ under the statute”)

and Gualtieri v. Farina, 283 F. Supp. 2d 917, 925 (S.D.N.Y.2003) (same)).

iv. 90/180 standard

Lastly, to meet the 90/180 standard, “a plaintiff must show that he was prevented ‘from

performing his usual activities to a great extent, rather than some slight curtailment’ for ninety of

the 180 days following the accident.” Evans, 978 F. Supp. 2d at 166 (quoting Licari v. Elliott,

441 N.E.2d 1088, 1091 (N.Y. 1982)). “[T]he ninety days requirement must be taken literally.”

Arenes, 2006 WL 1517756, at *9 (citing Licari, 441 N.E.2d at 1091).

“As with the other categories of injury, [a plaintiff’s] allegations that her injuries fall

within this category must be substantiated by objective medical proof; self-serving statements are

insufficient to raise a triable issue of fact.” Brusso, 699 F. Supp. 2d at 583 (citing Hyacinthe v.

United States, No. 05–CV–1363 (KAM)(VVP), 2009 WL 4016518, *12 (E.D.N.Y.2009)

(“objective medical findings” are required to prove 90/180 impairment), and Gualtieri, 283 F.

Supp. 2d at 925 (plaintiff failed to meet burden where “self-serving testimony that she can no

longer clean her house or hold her baby for long periods of time [ ] is unsubstantiated”)).

DISCUSSION

I. Plaintiff Kang

Kang alleges that as a result of the 2017 accident, she sustained injuries to her head, left

shoulder, right knee, lumbar spine, and cervical spine. Pls.’ 56.1 Statement of Additional Material

Facts ¶ 2–3; Ans. to Interrogs. ¶ 4. Defendants maintain that Kang’s physical conditions are

preexisting, either the result of degeneration or prior accidents. Defs.’ Br. 1. In the alternative,

defendants argue that Kang did not sustain “serious injuries” within the definition of the No-Fault

Law. Id. Because plaintiffs have not carried their burden of showing a genuine dispute of fact that

Kang’s left shoulder, right knee, lumbar spine, or cervical spine injuries were proximately caused

by the 2017 accident, I grant summary judgment for defendants as to those injuries. Summary

judgment is denied with regard to Kang’s head injuries, because questions of fact remain as to

their cause and seriousness.

A. Summary of Defendants’ Evidence

i. Head

Dr. Head reviewed relevant portions of Kang’s medical history and performed a

neurological and psychological examination on October 24, 2019. Report of Dr. Head (“Kang

Head Rep.”), ECF No. 33-6.20 He concluded that “Kang has not sustained any permanent

neurological or psychiatric condition or disability, relative to the [2017 accident].” Id. at 20.

20 Defendants’ physician reports, which constitute the bulk of the evidence supporting their

motion, are not accompanied by sworn affidavits. See Yong Qin Luo, 625 F.3d at 777 (“In

support of its [prima facie case], defendant may rely on the unsworn reports by plaintiff’s

physicians, but must provide evidence from its own physicians in the form of sworn affidavits.”

(quoting Barth v. Harris, No. 00 Civ. 1658(CM), 2001 WL 736802, at *2 (S.D.N.Y. June 25,

2001)); Ruffin v. Rana, No. 11 CV. 5406(MHD), 2013 WL 4834368, at *8 (S.D.N.Y. Sept. 4,

2013) (same) (citing Rivera, 2012 WL 3132667, at *10). As all but one of them are affirmed

under the penalties of perjury, however, I consider those reports admissible for the purposes of

this motion. Ruffin, 2013 WL 4834368, at *8; Baytsayeva v. Shapiro, 868 F. Supp. 2d 6, 19 n.21

(E.D.N.Y. 2012) (citing 28 U.S.C. § 1746 and Williams v. Elzy, No. 00 Civ. 5382(HPB), 2003

WL 22208349, at *5 (S.D.N.Y. Sept. 23, 2003)). Dr. Mahalick’s neuropsychological report,

however, is unsworn, and unlike the other expert reports submitted by defendants, not affirmed

under penalty of perjury. See Report of Dr. Mahalick (“Kang Mahalick Rep.”), ECF No. 33-8.

Thus, I do not consider Dr. Mahalick’s report here. See Arenes, 2006 WL 1517756, at *2

(refusing to consider defendants’ radiologist report because it was neither sworn nor subscribed

to under penalty of perjury).

A dispute of fact remains as to whether Kang sustained direct head trauma from the 2017

accident. Contrary to her statement to her treating physician, Dr. Gamburg, on January 24, 2018

that she did not sustain direct head trauma or lose consciousness in the 2017 accident, Kang

informed Dr. Head that she struck her head and lost consciousness for several minutes. Id. at 3;

Report of Dr. Gamburg, Defs.’ Ex. EE (“Kang Gamburg Rep.”) 2, ECF No. 32-33; see also Kang

Dep. 117:21–24 (Kang testifying that her head hit the headrest and steering wheel during the 2017

accident); NYPD Accident Report, Defs.’ Ex. Z (“Accident Rep.”) 2, ECF No 32-28 (indicating

that “no injuries [were] reported or observed” at the scene of the accident).

After administering a battery of neurological tests, Dr. Head explained that Kang’s

“neurological examination . . . [was] objectively normal,” except for the absence of “ankle jerks,”

which indicated “peripheral neuropathy, [but not] . . . trauma.” Kang Head Rep. 11–12, 15. He

determined that “her mental status examination failed to reveal evidence of any cognitive

impairment[,]” citing her alert and oriented demeanor, fluent speech, and normal memory, among

other indicators. Id. at 11.

Dr. Head also detected “evidence of diffuse parietal and occipital cortical atrophy [and]

scattered T2 hyperintensities throughout the white matter of the brain” on Kang’s October 2018

MRI, but “no evidence of brain injury.” Id. at 20. Although he noted that “increased T2/FLAIR

signal intensities [were] present,” he explained that those findings must be “correlate[d] . . . with

the SWI21 images to see if there is any evidence of any hemosiderin accumulation around the

T2/FLAIR hyperintensities.” Id. at 16. Since “[t]here [were] no[ hemosiderin accumulations] in

this case,” the “normal SWI sequences” indicated that there “was no brain trauma in the [2017

accident].” Id. at 16, 30. He qualified his conclusion, however, stating that

21 Susceptibility Weighted Imaging (SWI), an MRI technique.

[t]herefore, these findings are most likely due to microvascular disease rather than

trauma. The atrophy is real and apparently is mild, but, nonetheless, is present and

is difficult to explain, but is apparently not related to brain trauma . . . .

Id. at 16 (emphases added). In a similar vein, Dr. Head observed that the diffuse cortical atrophy

on Kang’s brain images is “symmetrical” rather than “relegated to one side or the other.” Id. at 15.

Accordingly, he concluded that “[i]t would be unlikely that this would be related to trauma

sustained on December 21, 2017.” Id. (emphasis added). His statements indicate that trauma is an

unlikely, but possible, cause of Kang’s head injuries.

Dr. Head acknowledged Kang’s longstanding diagnosis of bipolar disorder, which caused

her to experience recurring manic attacks, has required repeated hospitalizations since 1997, and

for which she takes medication consistently. Id. at 2, 9. Dr. Head concluded that Kang’s bipolar

disorder was “under control” and that she presently experienced “no sign . . . of anxiety or

depression.” Id. at 16. He recommended that she “continue her treatment for bipolar disorder,

unrelated to her accident.” Id. at 21. He did not relate her bipolar disorder to her brain atrophy,

heightened signal intensities, or other alleged conditions from the 2017 accident.

ii. Left Shoulder

Dr. Gidumal physically examined Kang on October 28, 2019. Kang Gidumal Rep. 1. Based

on his examination and a review of Kang’s related medical records, he prepared a report in which

he determined that Kang’s left shoulder and right knee injuries were degenerative or preexisted

the 2017 accident. Id. at 1, 9.

Kang has a history of left shoulder injuries from her 2014 accident. She filed a lawsuit in

2014, alleging that she sustained serious and permanent injuries to her left shoulder as a result of

a car accident. See 2014 Bill of Particulars ¶ 7 (alleging permanent injury to Kang’s left shoulder,

including joint effusion and a focal intrasubstance tear involving the subscapularis tendon). Dr.

Gidumal asserts that nothing in her record indicates that Kang recovered from those injuries. Kang

Gidumal Rep. 8–9.

An MRI of Kang’s left shoulder conducted after the 2017 accident on February 5, 2018

showed “evidence of chronic long-standing pathology[,]” but not “acute injuries.” Id. at 9; MRI of

Left Shoulder, Feb. 5, 2018, Defs.’ Ex. W (“2018 Kang Left Shoulder MRI”), ECF No. 32-25.

Although Dr. Gidumal identified “rotator cuff tendinosis and tendinitis, impingement[,]

supraspinatus outlet syndrome[, and a] hypoplastic partially torn labrum” on the MRI, he

determined that those conditions were not acute, noting that “[t]here was no bone marrow edema,

T2 signal abnormality, bleeding or contusions of the muscle.” Kang Gidumal Rep. 9. Additionally,

he explained that

A hypoplastic glenoid is a glenoid that was not formed properly and therefore not

a traumatic event. The MRI showed evidence of tendinosis and tendinitis which are

age related changes and not acute traumatic injuries. The MRI showed a

supraspinatus outlet syndrome which is a developmental, degenerative or

congenital condition. It is not traumatic. Therefore, it is my opinion within a

reasonable degree of medical certainty that the MRI shows no evidence of any acute

injuries from the results of the December 21, 2017 events but rather to chronic long-

standing degenerative disease or previous car accidents.

Id.

Dr. Gidumal’s conclusion was bolstered further by his review of Kang’s left shoulder

arthroscopic surgery record, which, he asserted, showed no evidence of acute injury. Kang

Gidumal Rep. 3–4, 9; Various Records of Consultations with Dr. Seldes, Defs.’ Ex. T (“Kang

Seldes Consultations”) 3–5, ECF No. 32-22. The conditions identified during the arthroscopy

included “impingement syndrome, [a Superior Labrum Anterior and Posterior (SLAP)] tear and

loose bodies.” Kang Gidumal Rep. 9. Dr. Gidumal maintained that these conditions were

degenerative, explaining that

An impingement syndrome is a degenerative, congenital or developmental

condition. An impingement is not a traumatic condition. An impingement

syndrome causes degeneration of the rotator cuff and labrum. Therefore, it is my

opinion within a reasonable degree of medical certainty that there is no evidence of

an acute traumatic injury on the arthroscopic evaluation.

Id.22

Relatedly, Dr. Gidumal’s physical examination of Kang revealed “some subjective

complaints of shoulder pain but no object[ive] evidence of an injury.” Id. Dr. Gidumal determined

that Kang had a normal range of motion in her left shoulder.23 Id. at 6–7. He observed no atrophy

or swelling, signs of impingement, subdeltoid or scapulothoracic crepitus, instability, or pain or

tenderness in her A-C joint. Id.

iii. Right Knee

As with her left shoulder, Kang’s right knee pain dates back to her 2014 accident, on the

basis of which Kang filed a lawsuit alleging permanent knee injuries. See 2014 Bill of Particulars

¶ 7 (alleging permanent injury to Kang’s right knee, including joint effusion, an intrasubstance tear

of the body of the medial meniscus, a tear of the medial collateral ligament, and a Grade I meniscal

22 Plaintiffs argue that Dr. Gidumal’s report failed to meet its initial burden because he did not

address the SLAP tear identified in Kang’s arthroscopy. Pls.’ Br. 16. First, plaintiffs did not

allege a SLAP tear as one of the shoulder injuries claimed by Kang. See Pls.’ 56.1 Statement of

Additional Material Facts ¶ 3. Second, Dr. Gidumal explained that Kang’s impingement

syndrome caused the tear to her labrum, and thus, adequately addressed the injury.

23 Dr. Gidumal used the same method to measure range of motion for each medical opinion he

prepared in this case. Plaintiffs were instructed to move their relevant body part while Dr.

Gidumal measured their voluntary motion using a goniometer. Kang Gidumal Rep. 7; Lee

Gidumal Rep. 4; Report of Dr. Gidumal (“Kwon Gidumal Rep.”) 4, ECF No. 33-3. This

constitutes an active range of motion test.

Active range of motion testing, which allows a plaintiff greater control of her

movements, is less reliable than passive. Hodder, 328 F. Supp. 2d at 355; see also Ventra v.

United States, 121 F. Supp. 2d 326, 334 (S.D.N.Y. 2000) (discounting the importance of the

results of an active range of motion test, as compared to a passive test). Despite courts’

skepticism of active range of motion testing, however, some have considered such evidence,

particularly when plaintiffs’ subjective movements are measured using a goniometer or

protractor. See, e.g., Bass, 2019 WL 6527944, at *1–3 (stating that plaintiff’s doctor “objectively

measure[d]” plaintiff’s flexibility using a goniometer and considering defendant doctor’s range

of motion test, but noting that his findings were subjective because plaintiff controlled her own

movements).

capsular separation of the medial meniscus). At that time, she alleged that her knee injury limited

her range of motion, caused her pain, and interfered with her ability to go about her daily life. Id.

Dr. Gidumal compared the 2014 and 2018 MRIs of Kang’s right knee, concluding that the

2018 MRI “revealed no evidence of any acute changes.” Kang Gidumal Rep. 8; MRI of Right

Knee, July 30, 2014, Defs.’ Ex. G (“2014 Kang Right Knee MRI”), ECF No. 32-9; MRI of Right

Knee, May 22, 2018, Defs.’ Ex. X (“2018 Kang Right Knee MRI”), ECF No. 32-26. Consistent

with the allegations of right knee injury in Kang’s 2014 lawsuit, the 2014 MRI “revealed a medial

meniscal tear with a grade 1 capsular separation and an MCL tear.” Kang Gidumal Rep. 8; 2014

Kang Right Knee MRI. The 2018 MRI showed the same capsular separation as the 2014 MRI.

Kang Gidumal Rep. 8; 2014 Kang Right Knee MRI; 2018 Kang Right Knee MRI. In addition,

however, it showed myxoid degeneration of the posterior horn of the medial meniscus and a partial

ACL tear. Kang Gidumal Rep. 8; 2018 Kang Right Knee MRI. Dr. Gidumal explained that the

ACL tear was degenerative because “[t]here was no inflammation, bone marrow edema or signal

abnormality consistent with an acute ACL tear.” Kang Gidumal Rep. 8. Reinforcing his

conclusion, he detected no indication that Kang’s right knee injuries were acute from Dr. Seldes’s

arthroscopic report. Kang Gidumal Rep. 8; Kang Seldes Consultations 10–12.

Consistent with his review of Kang’s diagnostic reports, Dr. Gidumal’s physical evaluation

yielded “evidence of subjective complaints of knee pain but no object[ive] evidence of any

traumatic injury[, and] . . . no evidence of any meniscal or ligamentous tears.” Kang Gidumal Rep.

8. Although he determined that Kang’s right knee range of motion was slightly restricted, he

detected no effusion, medial or lateral joint line pain, or valgus or varus instability. Id. at 6.24 Her

24 Kang’s right knee range of motion was 0° extension / 130° flexion. Kang Gidumal Rep. 6. A

normal range of motion is 0° extension / 150° flexion, indicating a 13.33% decrease. Id.

Lachman and anterior and posterior drawer signs were negative, and her McMurray’s test was

positive for subjective complaints of pain, but negative for objective clunking. Id.

Considering this evidence together, Dr. Gidumal concluded that Kang’s knee injuries

preexisted and were not caused by the 2017 accident, a sufficient showing to meet defendants’

initial burden. Id. at 8.

iv. Lumbar Spine

Dr. Kuflik conducted a physical examination of Kang on October 31, 2019 and prepared a

report dated November 18, 2019, assessing the severity and cause of her alleged lumbar and

cervical spinal injuries. Report of Dr. Kuflik (“Kang Kuflik Rep.”) 1, ECF No. 33. In doing so,

Dr. Kuflik reviewed a series of Kang’s medical records from 2014 to 2019, expert reports, police

reports, Kang’s interrogatories, and cervical and lumbar spine MRIs. Id. at 3–5.25 He concluded

that Kang’s cervical and lumbar spine injuries preexisted the 2017 accident, explaining that she

“has complaints of cervical and lumbar spine pain, virtually identical to prior complaints following

a motor vehicle accident in 2014 and 2015 for which she received treatment to at least 2016,

including injections, chiropractic care, and acupuncture.” Id. at 6; see also Various Kang Med.

Recs. 31–40 (documenting evidence of Kang’s cervical and lumbar spine injuries in December

2015 and January 2016, such as loss of range of motion, muscle spasms, and positive Spurling

tests,26 as observed by Kang’s treating physician, Dr. Xie); Integrated Pain Management Medical

25 In support of their motion, defendants submitted a lumbar spine MRI, stating in their

declaration that it was “a true and accurate copy of plaintiff Erin Kang’s Lumbar Spine MRI,

dated 2/8/2016.” See Defs.’ Ex. N, ECF No. 32-16; Defs.’ Decl. ¶ 16, ECF No. 32-2. The MRI

itself, however, is regarding “Ju Hee Lee,” not Erin Kang. Defs.’ Ex. N at 2. Thus, I disregard

Defendants’ Exhibit N for the purposes of this motion.

26 “A Spurling [test] is a clinical test that is performed by bending a patient’s head backwards

and sideways while exerting downward pressure on the head. . . . A positive Spurling Maneuver

occurs when the patient indicates that performing the maneuver causes pain that radiates to her

Records, Defs.’ Ex. Q (“Add. Dr. Xie Recs.”), ECF No. 32-19 (documenting evidence of Kang’s

cervical and lumbar spine injuries in March and May 2016 and indicating no resolution of her

injuries or symptoms). Dr. Kuflik stated that

There is no objective causally related evidence of an injury to the cervical or lumbar

spines as a consequence of this event in excess of a sprain/strain. There is no

objective causally related evidence of a disability vis a vis the spine. There is no

objective causally related indication for further treatment of the spine.

Kang Kuflik Rep. at 6.

Dr. Kuflik reported that his physical examination of Kang’s lumbar spine was

“unremarkable.” Id. Besides Kang’s subjective complaints of pain, Dr. Kuflik detected no

paraspinal muscle spasm or atrophy. Id. at 3. He conducted several objective tests and identified

no abnormalities, noting only that plaintiff refused to perform the Flexion, Abduction, and External

Rotation (FABERs) test due to subjective complaints of knee pain. Id. (finding no positive results

on upper and lower extremity motor examinations, straight leg raising test,27 and Hoffman,

Babinski, Spurling, and clonus tests). Dr. Kuflik also noted that Kang’s lumbar spine range of

motion was “minimally restricted by complaints of pain.”28 Id. at 2–3.

extremities, and indicates an underlying injury to the neck, such as a slipped disc or pinched

nerve.” Rivera, 2012 WL 3132667, at *19 n.44 (citations omitted). A Spurling test is considered

an “objective medical test[.]” Id. at *24.

27 “A straight-leg-raise test is used to indicate w[h]ether the patient has an injury to the lumbar

spine, such as a slipped disc or pinched nerve. It does not typically indicate injury to the cervical

spine.” Rivera, 2012 WL 3132667, at *2 n.7. New York case law “has consistently treated

straight-leg raising tests as objective evidence of serious injury.” Tsveitel v. Geoghegan, No. 05–

CV–5721, 2009 WL 2182379, at *5 (E.D.N.Y. July 21, 2009) (quoting Kim v. Cohen, 208

A.D.2d 807, 807 (N.Y. App. Div. 1994)).

28 Based on an active range of motion test aided by a goniometer for measurement, Dr. Kuflik

determined that Kang had no abnormal range of motion limitations to her lumbar spine, citing

the following measurements:

An MRI of Kang’s lumbar spine performed on January 26, 2018 revealed “normal

alignment of the spine with maintenance of the disc heights” and no nerve root compression. Id.

at 5. Dr. Kuflik did not contest an earlier assessment by Dr. Xie, which concluded that the 2018

lumbar spine MRI revealed “straightening of the lumbar lordosis.” Id. at 6; MRI of the Lumbar

Spine, Jan. 26, 2018 (“2018 Kang Lumbar Spine MRI”), Defs.’ Ex. DD, ECF No. 32-32.

Although Dr. Kuflik does not compare Kang’s MRI to any previous images of her lumbar

spine,29 the Bill of Particulars from Kang’s 2014 lawsuit outlined, in detail, substantially similar

lumbar spine injuries. 2014 Bill of Particulars ¶ 7 (alleging that Kang’s 2014 accident caused

“reversal of the lumbar lordosis . . . [c]entral herniated disc at the L4-5 level[, and v]entral bulging

at L5-S1”); see also Kang Seldes Rep. 10; 2014 Kang Lumbar Spine MRI. He also noted that

following Kang’s 2015 accident, Dr. Xie treated her for neck and lower back pain in 2015. Kang

Kuflik Rep. 4; Various Kang Med. Recs. 31; see also Records of Thomas Lai, D.C., Defs.’ Ex. S

Kang’s Lumbar Spine Normal

Flexion 60° 60°

Extension 30° 25°

Lateral Right Bending 20° 25°

Lateral Left Bending 20° 25°

Rotation to the Right 30° 30°

Rotation to the Left 30° 30°

Id. at 2–3. Although Dr. Kuflik classifies Kang’s range of motion restriction as “minimal,”

relevant caselaw has “generally found that a limitation of twenty percent or more is significant

for summary judgment purposes.” Hodder, 328 F. Supp. 2d at 356 (collecting cases). Here, he

reported that Kang’s lateral right and left bending is restricted by 20%.

29 Defendants submitted an MRI of Kang’s lumbar spine conducted on August 6, 2014, which

diagnosed a “reversal of the lumbar lordosis[,]” a “central herniated disc at the L4-5 level[,]” and

“ventral bulging at L5-S1.” MRI of the Lumbar Spine, Aug. 6, 2014 (“2014 Kang Lumbar Spine

MRI”), Defs.’ Ex. F, ECF No. 32-8. Dr. Kuflik does not list this unsworn MRI report among

those that he reviewed to prepare his medical opinion, but plaintiffs’ expert, Dr. Seldes, does. See

Kang Seldes Rep. 8, 10 (affirming that Kang’s 2014 lumbar spine MRI shows “disc herniation at

L4-L5 and disc bulging at L5-S1”). Thus, I consider it for the purposes of this motion.

(“Kang Lai Recs.’”) 2, ECF No. 32-21. She was still experiencing “significant spine symptoms”

on March 14, 2016. Kang Kuflik Rep. 4.

v. Cervical Spine

Justifying his conclusion that Kang’s cervical spine injuries were not caused by the 2017

accident, Dr. Kuflik noted that his physical examination of Kang’s cervical spine, like her lumbar

spine, was “unremarkable,” id. at 6, although Kang’s range of motion was slightly restricted. Id.

at 2–3.30

He also reviewed two MRIs of Kang’s cervical spine—one before and one after the 2017

accident—and determined that both demonstrated multilevel mild degenerative changes and a

right-sided disc herniation at C5-C6. Id. at 4–5; MRI of the Cervical Spine, Feb. 8, 2016, Defs.’

Ex. M (“2016 Kang Cervical Spine MRI”), ECF No. 32-15; MRI of the Cervical Spine, Jan. 26,

2018, Defs.’ Ex. CC (“2018 Kang Cervical Spine MRI”), ECF No. 32-31. He explained that there

were “no significant changes” between the pre- and post-2017 accident MRIs. Kang Kuflik Rep.

5–6. Dr. Head’s analysis of Kang’s pre- and post-accident MRIs is consistent with Dr. Kuflik’s.

Dr. Head explained that an identical C5-C6 disc herniation appears on both films, showing that it

30 Dr. Kuflik recorded Kang’s cervical spine range of motion as follows:

Kang’s Cervical Spine Normal

Flexion 45° 50°

Extension 45° 60°

Lateral Right Bending 40° 45°

Lateral Left Bending 40° 45°

Lateral Right Rotation 80° 80°

Lateral Left Rotation 80° 80°

Kang Kuflik Rep. 2–3. This finding does not undermine Dr. Kuflik’s assessment that Kang’s

cervical spine injuries are unrelated to the 2017 accident because he explained that Kang’s MRIs

indicate that her injuries preexisted the accident.

predated the 2017 accident, and noted that “[t]he other pathologies seen on the earlier films have

apparently resolved” in Kang’s 2018 MRI. Kang Head Rep. 13–14, 18, 20.

In addition to his assessment of Kang’s MRIs, Dr. Kuflik reviewed records of a

percutaneous cervical discectomy performed on the C5-6 level of her cervical spine on July 14,

2018. Id. at 5. He determined that “[t]here was no objective indication the surgery performed was

causally related to the alleged motor vehicle accident of 12/21/2017.” Id. at 6.

B. Summary of Plaintiffs’ Evidence

i. Head

Dr. Golzad conducted an in-person consultation with Kang on September 26, 2018 and,

nearly a year later, prepared a report based on his examination, Kang’s October 2018 brain MRI,

and a neuropsychological evaluation performed by Dr. Schweiger on April 26, 2019.31 Kang

Golzad Rep. 6–7. Both Dr. Schweiger’s assessment and the October 2018 MRI were conducted

after Kang was involved in a subsequent car accident on August 13, 2018, for which Kang initiated

another lawsuit under New York’s No-Fault Law. Defs.’ 56.1 ¶ 24; Pls.’ 56.1 ¶ 24; 2018 Bronx

Cty. Compl.

Reciting Kang’s relevant medical history in his report, Dr. Golzad stated that she sustained

a concussion and lost consciousness in a prior motor vehicle accident, which occurred when Kang

was in high school. Id. at 6; see also Kang Head Rep. 6, 29 (indicating that Kang was involved in

a motor vehicle accident in 1989 in which she lost consciousness). He also acknowledges that

Kang was diagnosed with bipolar disorder following her accident in high school, for which she

31 Although Dr. Golzad’s report states that Dr. Schweiger’s evaluation took place in August

2019, because Dr. Golzad’s report was prepared on July 14, 2019, I consider this a typographical

error. Kang Golzad Rep. 7. Dr. Head’s report indicates that it was conducted on April 26, 2019.

Kang Head Rep. 30.

takes Abilify. Kang Golzad Rep. 6. Her dosage increased after the 2017 accident. Id.

Kang complained of frequent “headaches, tinnitus, dizziness, loss of balance, memory and

cognitive difficulties” following the 2017 accident, and an evaluation of Kang’s cognitive abilities

indicated that she had difficulty with attention, concentration, memory, and recall. Id.32 Dr.

Schweiger’s report stated that “[t]he patient’s symptom presentation and her performance on this

neurobehavioral screening are consistent with behavior and functioning typically observed among

patients who have experienced brain trauma.” Id. at 10.33 Explaining that a previous traumatic

brain injury may have made Kang more vulnerable to a second brain trauma, Dr. Schweiger’s

report stated that “in the absence of other factors which could explain the present results, it can be

stated with a reasonable degree of neuropsychological certainty that [Kang’s] decline is due to the

32 Dr. Golzad’s report does not specify whether he observed these deficiencies in his

examination, or whether he was summarizing Dr. Schweiger’s findings. See id. at 8–10 (stating

that “formal testing” of Kang’s cognitive function showed a decline in her executive functions,

working memory, memory, attention and concentration, verbal retrieval, and information

processing speed).

33 Defendants oppose the use of Kang’s brain MRI report, arguing that it relies on allegedly

unreliable Diffusion Tensor Imaging (DTI) technology. See Defs.’ Br. 27, 43. The relevant MRI,

however, relies on several methodologies, including NeuroQuant, Magnetic Resonance

Venography (MRV), and DTI. See Various Kang MRI Reports 2–4. In support of their argument,

defendants point to Dr. Mahalick’s inadmissible report, in which he opines on the “pros[ ]and

cons” of DTI testing in the literature. See, e.g., Kang Mahalick Rep. 60–61. Additionally, they

rely on one New York Supreme Court case, decided under the Frye standard, which determined

that “DTI d[id] not (at the time of this writing) have a general acceptance to be used as the

standard in clinical/medical treatment of individual patients who are being treated for TBI[s].”

Brouard v. Convey, 70 N.Y.S.3d 820, 823 (N.Y. Sup. Ct. 2018). Other federal courts, however,

have determined that DTI technology is reliable for detecting traumatic brain injury under the

Daubert standard. See, e.g., Andrew v. Patterson Motor Freight, Inc., No. 6:13CV814, 2014 WL

5449732, at *8 (W.D. La. Oct. 23, 2014); Ruppel v. Kucanin, No. 3:08-CV-591, 2011 WL

2470621, at *7 (N.D. Ind. June 20, 2011). Defendants’ own expert, Dr. Head, considers the

evidence generated by the DTI tests, but chooses to weight the results of a different test, the

SWI, more heavily. See Kang Head Rep. 15. Thus, I do not accept defendants’ argument that Dr.

Golzad’s report should be disregarded on this basis for the purposes of summary judgment,

although I do not bar it at later stages in the litigation.

injury of record.” Id. Dr. Schweiger’s findings were consistent with Kang’s October 2018 brain

MRI, on the basis of which her radiologist concluded that her injuries were “most compatible with

[traumatic brain injury (TBI)].” Id. at 7.

Engaging in no independent analysis, Dr. Golzad concluded that Kang suffered a traumatic

brain injury from her 2017 accident, which exacerbated “pre-exist[ent] neuropsychiatric

symptoms” and caused headaches, a mood disorder, and memory and cognitive deficits. Id. at 11.

ii. Left Shoulder, Right Knee, Lumbar and Cervical Spine

Dr. Seldes produced a conclusory report regarding the cause of Kang’s shoulder, knee,

lumbar spine, and cervical spine injuries, in which he acknowledged that Kang had preexisting

injuries to her right knee, lumbar spine, and cervical spine from prior accidents. Kang Seldes Rep.

8–11. He conducted a physical examination and reviewed relevant portions of her medical records.

Id. at 8. Dr. Seldes recorded Kang’s range of motion for each body part, but failed to indicate how

he conducted the test. Id. at 9. He also reported that Kang experienced muscle spasms in her

cervical spine and lumbar spine, but did not explain which test he used to detect the spasm.34 Id.

Dr. Seldes reviewed Kang’s various MRIs from before and after the 2017 accident and

described her preexisting cervical spine, lumbar spine, and right knee injuries. Id. at 9–10. For

example, he explained that Kang’s 2016 cervical spine MRI showed “disc herniations from C3-

C7[,]” and that the corresponding 2018 MRI showed only “a herniation from C5 to C6[.]” Id. at

10. With regard to Kang’s right knee, he stated that her 2014 MRI showed a medial meniscal tear,

34 “Although medical testimony concerning observations of a spasm can constitute objective

evidence in support of a serious injury, the spasm must be objectively ascertained. This

requirement was not satisfied by the testimony of plaintiff's expert that he detected a spasm,

where he did not, for example, indicate what test, if any, he performed to induce the spasm.”

Toure, 774 N.E.2d at 1205.

grade 1 capsular separation, and an MCL tear. Id. The 2018 MRI was substantially similar, also

showing a medial meniscal tear and meniscal capsule separation, in addition to a partial ACL tear

and bone island inflammation of the distal femur. Id. Although he acknowledged that Kang had

preexisting conditions from prior car accidents, he did not explain how he determined that her

current injuries were aggravated by the 2017 accident. Id. at 10–11.

Rather, he concludes, without further analysis, that “[a]fter reviewing the records and

examining the patient, it is my medical opinion that the C-spine, lumbar spine, left shoulder, and

right knee are directly involved and related to the [2017 accident.]” Id. at 11.35 He asserted that

“from history, physical exam, and MRI reports, [Kang’s preexisting] injuries were exacerbated by

the [2017 accident].” Id. His only documented justification for this conclusion is Kang’s statement

to him that “although she had previously injured her C-spine, L-spine, and Right knee in prior

accidents, they were doing well after physical therapy and treatment and were exacerbated by the

[2017 accident].” Id. at 9. Notably, he did not conclude that Kang suffers from permanent structural

damage to the lumbar spine at all. See id. at 11 (“The patient has some permanent structural damage

in the C-spine from the herniation, in the left shoulder from rotator and labral tear, and in the right

knee from the meniscal tears and chondral injury. . . . [A]nd the patient has reached maximum

medical improvement.”); id. (concluding that Kang suffers from “disc bulging and herniations” on

her lumbar spine, which are “improving”).

C. Causation of Kang’s Injuries

Defendants established their prima facie case that Kang’s left shoulder, right knee, lumbar

spine, and cervical spine injuries were caused by preexisting injuries and degeneration, rather than

35 Dr. Seldes’s orthopedic consultation reports provide minimal additional information, none of

which pertains to causation. Consultation Reports of Dr. Seldes, Pls.’ Ex. B (“Kang Seldes

Consultation Reps.”) 2–7, ECF No. 38-3.

the 2017 accident. See Boyarski v. Karczewski, No. 17-CV-6282 FPG, 2019 WL 3816560, at *3

(W.D.N.Y. Aug. 14, 2019) (determining that initial burden was established by physician reports

concluding from post-accident MRIs that plaintiff’s injuries were degenerative, as well as evidence

that plaintiff complained of arthritic pain before the accident and did not report pain to treating

doctors on the day after the accident); Gay, 2011 WL 2015528, at *3, *5–6 (finding initial burden

satisfied by defendant doctors’ determination that plaintiff’s post-accident MRIs and physical

examination revealed only degenerative disc disease and long-standing pathology); Rhone, 2007

WL 3340836, at *7–8 (finding that defendant doctor’s report satisfied initial burden where he

identified degenerative conditions on pre-accident MRIs and noted that plaintiff complained of

similar symptoms following a prior accident); Kerr v. Klinger, 896 N.Y.S.2d 868, 868–69 (N.Y.

App. Div. 2010) (“Defendant established her prima facie entitlement to summary judgment by

submitting evidence, including the affirmed reports of a radiologist, who, upon reviewing the MRI

films taken after plaintiff’s accident, concluded that the disc bulges and/or herniations revealed

therein were the result of degenerative disc disease and not caused by the automobile accident at

issue.”).

For each body part, Drs. Gidumal and Kuflik relied on objective evidence, such as MRI

films and arthroscopic surgery photographs, to determine that Kang sustained no acute injuries in

the 2017 accident. See Parts I.A.ii–v. They both explained the basis for their conclusions—for

example, by comparing pre- and post-accident MRIs in the case of Kang’s right knee and cervical

spine. Where there were no pre-accident MRIs to compare to Kang’s 2018 MRI films, as was the

case with Kang’s lumbar spine and left shoulder injuries, Drs. Gidumal and Kuflik explained how

the post-accident films and arthroscopic records lacked indicators of traumatic injury and pointed

to pre-accident medical records and Kang’s 2014 Bill of Particulars, which alleged substantially

similar injuries and did not show that she had recovered from her prior injuries. Taken together,

this evidence satisfies defendants’ initial burden for all but Kang’s head injuries.

Dr. Head’s medical opinion, however, is insufficient to shift the burden from defendants

to plaintiffs with regard to causation because it does not rule out traumatic brain injury as a cause

of Kang’s brain conditions. See Baytsayeva, 868 F.Supp.2d at 26 (finding medical expert’s report

inconclusive as to causation where he opined that plaintiff’s injury could be traumatic or

degenerative in nature and that a trauma-induced injury was “unlikely”); cf. Valentin, 873

N.Y.S.2d at 184 (determining that defendants met prima facie burden where radiologist’s report

stated that there was “no evidence of post-traumatic injury”). Dr. Head determined that although

Kang experienced brain atrophy and T2 hyperintensities, her medical record and his examination

showed “no evidence of brain injury.” Kang Head Rep. 20. In addition to this definitive statement,

however, he opined that

these findings are most likely due to microvascular disease rather than trauma. The

atrophy is real and apparently is mild, but, nonetheless, is present and is difficult to

explain, but is apparently not related to brain trauma, as the SWI images show no

evidence of any hemosiderin accumulation within the cerebral hemispheres.

Id. at 16 (emphases added). His statements leave open the possibility, albeit unlikely, that brain

trauma caused Kang’s head injuries—and thus, raise a triable issue of fact. At summary judgment,

such equivocal statements are insufficient to carry defendants’ initial burden as to causation.

Furthermore, contrary to defendants’ assertions, Dr. Head did not show that Kang’s bipolar

disorder constituted a preexisting condition explaining the full scope of Kang’s alleged

neurological symptoms. In fact, Dr. Head opined that her bipolar disorder was “under control” and

that she should continue her current treatment plan, unrelated to the 2017 accident. Additionally,

her 1989 high school car accident, which occurred approximately twenty-eight years earlier and

resulted in brain injury and loss of consciousness, is not persuasive evidence of a preexisting

condition. See Perpall, 2017 WL 1155764, at *22 (finding evidence that plaintiff underwent back

surgery twenty-four years before relevant accident unpersuasive that plaintiff’s back injuries were

not caused by the accident (citing Evans, 978 F. Supp. 2d at 167) (finding evidence concerning

plaintiff’s forty-year-old injury not persuasive enough to be considered a pre-existing condition)).

Because defendants did not meet their initial burden as to Kang’s head injuries, the burden

does not shift to plaintiffs to demonstrate a genuine issue of fact as to the cause of those injuries.36

The burden does shift to plaintiffs, however, with regard to Kang’s right knee, lumbar spine, and

cervical spine injuries. Plaintiffs failed to introduce evidence satisfying their burden.

Without further explanation, the avowal of plaintiffs’ medical expert, Dr. Seldes, that

Kang’s preexisting injuries were exacerbated by the 2017 accident is insufficient to carry

plaintiffs’ burden. Kang Seldes Rep. 9, 11. “[T]o the extent that the [p]laintiff is claiming that the

[relevant] accident aggravated asymptomatic pre-existing conditions, the [p]laintiff is required to

provide objective evidence that distinguishes aggravation of a pre-existing condition from the pre-

existing condition itself.” Evans, 978 F. Supp. 2d at 172 (citing Dabiere v. Yager, 748 N.Y.S.2d

38, 39 (N.Y. App. Div. 2002) (“[I]n the absence of objective evidence establishing the aggravation

as opposed to the underlying condition, plaintiffs’ submission is insufficient to demonstrate serious

injury[.]”)); see also Perpall, 2017 WL 1155764, at *19–20 (finding that plaintiff medical expert’s

36 Although plaintiffs need make no showing of causation here, the paucity of plaintiffs’

evidence establishing that the 2017 accident caused Kang’s head injuries makes it highly

unlikely that they will prevail at trial. For example, they have adduced no evidence of Kang’s

alleged head injury contemporaneous with the 2017 accident. See, e.g., Alvarez, 2012 WL

4094828, at *6 (explaining that “a lack of contemporaneous evidence” of plaintiff’s injury

undermines her attempt to prove causation); see also Kang Head Rep. 25–29 (explaining that

Kang’s medical records show that she did not complain of head trauma from the 2017 accident

until her consultation with Dr. Golzad on September 26, 2018). Nevertheless, because

defendants’ evidence was insufficient to shift the burden of proof, I do not grant summary

judgment for Kang’s head injuries on the basis of causation.

opinion failed to rebut defendants’ showing because “[h]e simply makes the statement that the . .

. accident exacerbated [plaintiff’s] pre-existing condition . . . without explaining what exactly that

exacerbation is or on what basis he concluded that such exacerbation had occurred”); Arenes, 2006

WL 1517756, at *9 (finding that plaintiffs did not carry burden where plaintiffs’ doctor did not

address defendants’ doctor’s report determining that injuries were degenerative or preexisting, and

where plaintiff doctor “does not explain what leads her to th[e] finding” that “plaintiffs’ injuries

are causally related to the Accident”). Although Dr. Seldes reported that Kang experienced a loss

of range of motion and various muscle spasms, he did not rebut defendants’ showing that Kang’s

injuries predated the 2017 accident. See Boyarski, 2019 WL 3816560, at *3–4 (finding that

plaintiff who did not “present evidence addressing the pre-existing injuries” to rebut defense

doctors’ theory of causation did not carry burden); Perpall, 2017 WL 1155764, at *19

(determining that plaintiff’s medical expert’s opinion was conclusory, and thus, insufficient to

meet plaintiffs burden because it lacked “any elaboration on [plaintiff’s] supposed recovery from

the conditions and impairments she suffered as a result of [her previous accident].”).

Furthermore, Dr. Seldes’s findings as to Kang’s range of motion carry little weight because

he did not specify the method that he used to measure it. He concluded that Kang’s range of motion

was restricted for each region “without any explanation as to how he tested [p]laintiff’s range of

motion or any indication that his conclusion was based on objective medical tests.” Gay, 2011 WL

2015528, at *7 (citing Mercado v. Lee, No. 04 Civ. 7166(PGG), 2008 WL 4963985, *3 (S.D.N.Y.

Nov. 21, 2008) (holding that expert’s conclusion that plaintiff’s range of motion was restricted

was insufficient absent any explanation as to how plaintiff’s range of motion was tested)); Hodder,

328 F.Supp.2d at 357 (stating that plaintiff’s doctor’s findings are “not particularly useful to this

Court because he never clarified whether the tests he conducted to elicit these results were passive

or active range of motion tests”). Because plaintiffs have failed to demonstrate a genuine dispute

of fact as to the cause of Kang’s shoulder, knee, lumbar spine, and cervical spine injuries,

defendants are entitled to summary judgment on those claims.

D. Serious Injury as to Kang

Kang’s claims regarding her head injuries survive summary judgment because she has

raised a dispute of fact as to whether she sustained a “significant limitation of use of a body

function or system,” but not a “permanent consequential limitation of use of a body organ or

member.” Defendants met their initial burden of showing that Kang had no head injury or had

recovered from it. Although Dr. Head conceded that Kang’s MRI indicated brain atrophy, he

concluded, based on neurological testing, that it was not a result of traumatic brain injury and that

she manifested no cognitive impairments limiting her brain function. Her memory, concentration,

and comprehension were within a normal range. See Kang Head Rep. 11.

As a preliminary matter, at no point in Dr. Golzad’s report did he conclude that Kang’s

injuries were permanent, stating only that she suffered traumatic brain injury from the 2017

accident. Kang Golzad Rep. 11; see Brusso, 699 F. Supp. 2d at 582 (explaining that doctor’s report

was “fatal[ly] inadequa[te]” where it did “not even reflect an opinion that [plaintiff] has suffered

a permanent or significant limitation”). With no expert opinion concluding that Kang’s head

injuries are permanent, I do not find that plaintiffs have met their burden as to a “permanent

consequential limitation.”

Nevertheless, plaintiffs adduced sufficient evidence to overcome summary judgment with

regard to the “significant limitation” category by proffering the results of Dr. Schweiger’s

neuropsychological evaluation, incorporated through Dr. Golzad’s report. See Flanders v. Nat’l

Grange Mut. Ins. Co., 1 N.Y.S.3d 542, 545 (N.Y. App. Div. 2015) (“Multiple mild cognitive

impairments may be sufficient to demonstrate the existence of serious injury in the significant

limitation of use category when they result in a combined impact that limits one’s ability to perform

daily life functions[.]”). Kang’s score on the Montreal Cognitive Assessment (MOCA) battery

indicated a “mild decline” in her cognition, although it is unclear which doctor performed Kang’s

test, and on what date. Kang Golzad Rep. 8 (indicating that Dr. Schweiger performed the test);

Kang Head Rep. 29 (including Kang’s MOCA test results in Dr. Golzad’s report summary). Dr.

Schweiger also administered an Integrated Visual and Auditory Attention Test (IVA-2), from

which he concluded that Kang’s auditory attention and auditory sustained attention were

“extremely impaired” and her visual attention “mildly impaired.” Kang Golzad Rep. 8. Based on

the NeuroTrax Cognitive Assessment battery, Kang’s memory was deemed “impaired” and her

executive function, verbal function, and global cognitive abilities “low average.” Id. at 9. Together

with evidence of brain atrophy on her MRI, administered approximately six months prior to Dr.

Schweiger’s cognitive testing, plaintiffs have adduced sufficient evidence to raise a genuine

dispute of fact as to whether Kang’s brain injuries constitute a “significant limitation.” Because

this finding precludes summary judgment as to Kang’s alleged head injuries, I need not assess her

90/180 standard claim here.

II. Plaintiff Lee

Lee alleged that he sustained injuries to his left knee, lower back, and neck as a result of

the 2017 accident. See supra Factual Background, Part II.A. Defendants argue that Lee’s medical

conditions are degenerative, rather than acute, and thus were not caused by the accident. Defs.’

Br. 30–31. In the alternative, defendants argue that Lee’s injuries are not serious as defined by

the No-Fault Law. Id. I find that defendants are entitled to summary judgment on causation

grounds for Lee’s alleged lumbar spine and left knee injuries. As defendants did not meet their

initial burden with regard to the cause or seriousness of Lee’s alleged cervical spine injuries,

summary judgment for those injuries is denied.

A. Summary of Defendants’ Evidence

Defendants’ medical expert, Dr. Gidumal, examined Lee on October 14, 2019 and

reviewed a selection of his treatment records and diagnostic studies, including post-accident

medical records, left knee arthroscopy records from March 16, 2018, and post-accident MRIs of

the lumbar and cervical spine, conducted on February 16, 2018 and of the left knee, conducted

on January 26, 2018. Lee Gidumal Rep. 1–3, 5.

i. Left Knee

After reviewing Lee’s left knee MRI, photographs from his arthroscopic surgery, select

medical records, and conducting a physical examination, Dr. Gidumal concluded that “any

abnormality present on the left knee cannot be related to the [2017 accident].” Id. at 6. He

explained that “[t]here is no evidence of any acute injuries to the left knee,” and that Lee’s left

knee injuries were “old.” Id. at 5.

Explaining his conclusion that Lee’s knee injuries were degenerative, Dr. Gidumal noted

that the left knee arthroscopic photographs showed “evidence of degeneration of the condyles”

and “no traumatic chondral defects.” Id. at 5. In those photographs, “[t]he [ACL] was intact,”

there was no meniscal capsular separation laterally, and “[t]here was evidence of degeneration of

the medial and lateral menisci,” but not acute injury. Id. Consistent with the arthroscopic

photographs, he explained that the MRI offered “no evidence that these were acute injuries[,]”

noting that “[t]here was no hemarthrosis” and “no kissing lesions on the lateral femoral

condyle/lateral tibial plateau.” Id.

During his physical examination of Lee, Dr. Gidumal observed that Lee walked without a

cane or limp, had no effusion in his knee joints, no valgus or varus instability, and no crepitus in

either knee. Id. at 3. Although Lee complained of medial joint line pain on both knees, Dr.

Gidumal recorded a normal range of motion in each based on active range of motion testing. Id.

To evaluate Lee’s alleged ACL tear, Dr. Gidumal conducted the Lachman test and noted that

anterior and posterior drawer signs were negative. Id.37

ii. Lumbar Spine

Based on his review of Lee’s medical records, radiographic studies, and physical

examination, Dr. Gidumal concluded that “there is no medical evidence that Mr. Lee sustained

any acute back injury.” Id. at 5. Dr. Gidumal identified no abnormal conditions with regard to

Lee’s lumbar spine. During his physical examination, the various objective tests were negative

and Dr. Gidumal observed no gross abnormalities, pelvic rotation, scoliosis, leg length

deficiencies, palpable spasms or active trigger points. Id. at 3. He determined that Lee’s range of

37 Plaintiffs assert that Dr. Gidumal’s report is “arbitrary and cursory” because he failed to

conduct a “necessary objective test[,] such as McMurray’s test[,] to assess Plaintiff Lee’s left

knee meniscus tear injury.” Pls.’ Br. 26 (citing Junco v. Ranzi, 288 A.D.2d 440, 440 (N.Y. App.

Div. Nov. 25, 2001) (affirming lower court’s denial of summary judgment for defendants

because “[t]he affirmed report of the defendants’ medical expert did not set forth the objective

tests he performed during his examination of the plaintiff which led him to conclude that the

plaintiff suffered no limitation to the range of motion in his neck or back”)). Plaintiffs cited no

case law indicating that McMurray’s test is the only type of objective evidence on which a

medical expert may rely. See Jones v. United States, 408 F. Supp. 2d at 114 n.12 (explaining that

objective medical findings “greatly limit or alleviate the patient’s participation . . . . Examples of

objective tests are as follows: reflex tests, measuring atrophy, an MRI or an X–ray”) (internal

citation omitted). In Toure, the New York Court of Appeals explained that “MRI and CT scan

tests and reports” can constitute objective evidence of a medical condition. 774 N.E.2d at 1202,

1205.

Here, Dr. Gidumal’s opinion relied on Lee’s post-accident treatment history, multiple

photos from Lee’s left knee arthroscopic surgery, MRIs of Lee’s left knee, and atrophy

assessments, in addition to active range of motion testing. Although Dr. Gidumal did not indicate

that he used McMurray’s test to evaluate Lee’s alleged meniscal tear, plaintiffs have not shown

that Dr. Gidumal’s omission of the McMurray test discredits his examination and medical

opinion.

motion and lower extremity motor function were both normal. Id. Although Lee had “subjective

complaints of pain,” he explained, there was “no evidence of any neurologic deficits, sensory

abnormalities, loss of reflexes[,] or atrophy.” Id. at 4–5.

According to Dr. Gidumal, “[t]he MRI showed evidence of longstanding degenerative

disease of the lumbar spine” because “[t]here was evidence of loss of signal height and diffuse

disc herniations with facet arthrosis and Ligamentum hypertrophy. The changes had been going

on for so long that there were endplate changes within the vertebra.” Id. at 4.38 The MRI lacked

indicators of acute injury, such as “annular tears, bleeding, bone marrow edema or T2 signal

abnormality.” Id. Additionally, Dr. Gidumal concluded that the electromyography (EMG) of

Lee’s lower extremity was “nondiagnostic,” as it presented no abnormalities consistent with

acute injury. Id. at 5.

iii. Cervical Spine

As with Lee’s lumbar spine, Dr. Gidumal also concluded that the cervical spine MRI

revealed “no evidence of any acute traumatic injury.” Id. at 4. He did not contest the radiologist’s

conclusion that the MRI demonstrated “[m]ultilevel loss of disc height and signal. C3 – 4, C4 –

5, C5 – 6 and C6 – 7 central and diffuse 8 mm disc herniations with central spinal stenosis.” Id.

at 2, 4. Rather, he explained that “[t]he MRI also showed evidence of long-standing degenerative

disc disease with facet arthrosis and Ligamentum flavum hypertrophy and multilevel loss of disc

signal and height.” Id. at 4. In his opinion, “in addition to these chronic changes there were no

38 Plaintiffs urge me to disregard Dr. Gidumal’s report because, although he notes disc

herniations in Lee’s lumbar spine, they claim that he opines without explanation that Lee’s

lumbar spine MRI only reveals degenerative conditions. Pls.’ Br. 26–27; see Lee Gidumal Rep.

4. Contrary to plaintiffs’ assertion, however, Dr. Gidumal explained that endplate changes on

Lee’s lumbar spine indicated degenerative, rather than acute, injury. Lee Gidumal Rep. 2, 4.

acute changes noted” on the MRI, as evidenced by that lack of “bone marrow edema, T2 signal

abnormality or bleeding.” Id. This conclusion, however, is limited to Dr. Gidumal’s assessment

of Lee’s cervical spine MRI. It does not reflect his findings from his physical examination or

Lee’s medical history.

In his physical examination, Dr. Gidumal reported a decreased range of motion in Lee’s

cervical spine. Id. at 4 (reflecting a 25% decrease in right and left lateral rotation and 33%

decrease in right and left lateral bending).39 Nevertheless, Lee’s reflexes were normal, he had no

detectable muscle spasm, and his Spurling and cervical compression tests were negative. Id. at 3.

Unlike his analysis of Lee’s lumbar spine and left knee, however, Dr. Gidumal does not

state a final conclusion as to the cause of Lee’s cervical spine injuries. See id. at 5 (stating that “it

is my opinion within a reasonable degree of medical certainty that there is no medical evidence

that Mr. Lee sustained any acute back injury,” but failing to provide a general conclusion as to

Lee’s alleged neck injury).

B. Summary of Plaintiffs’ Evidence

On June 4, 2019, Dr. Thomas Scilaris prepared a report on Lee’s medical conditions

following three medical evaluations he conducted on February 5, 2018, September 5, 2018, and

39 Dr. Gidumal recorded Lee’s cervical spine range of motion as follows:

Lee’s Cervical Spine Normal

Flexion 50° 50°

Extension 60° 60°

Lateral Right Bending 30° 45°

Lateral Left Bending 30° 45°

Lateral Right Rotation 60° 80°

Lateral Left Rotation 60° 80°

Id. at 4. He measured Lee’s voluntary movements using a goniometer. Id.

June 4, 2019. Lee Scilaris Rep. 8–9. He reviewed Lee’s post-accident MRIs, EMG results, and

post-accident medical reports, concluding that Lee’s injuries were caused by the 2017 accident.

Id. at 8–10.40

i. Left Knee

In his initial physical examination of Lee on February 5, 2018, plaintiff’s expert, Dr.

Scilaris, reported “some mild crepitus with equivocal McMurray’s” in addition to Lee’s

subjective complaints of pain. Id. at 9. His review of Lee’s MRI “revealed meniscal capsule

separation [and l]ateral meniscus with a partial ACL tear.” Id.41 He noted that Lee had a limited

range of motion in his left knee, not specifying how he measured range of motion, as well as

atrophy in his quadriceps and adductor musculature. Id. at 10. Although Dr. Scilaris concluded

that all of the injuries noted in his report were caused by the 2017 accident, he did not explain

how he determined that the conditions identified on the MRI indicated an acute, rather than a

degenerative, injury. See id. at 10–11.

ii. Lumbar Spine

Dr. Scilaris’s consultation summaries indicate that Lee did not complain of injuries to the

lumbar spine in either of his first two visits to Dr. Scilaris’s office on February 5, 2018 and

40 Dr. Scilaris stated that “with a reasonable [degree] of medical probability, there is a direct

causal relationship between the [2017 accident], and the injuries described above.” Lee Scilaris

Rep. 10. It is unclear, however, whether he is referring to all of the injuries referenced in his

opinion or only the injuries included in his relatively short “diagnosis” section. See id. His

“diagnosis” includes a much more limited list of conditions, namely: “Cervical herniated nucleus

pulposus[;] Lumbar herniated nucleus pulposus[; and] Status post arthroscopy performed by Dr.

Wert, synovectomy, chondroplasty, medial and lateral meniscectomy and lysis of adhesions.” Id.

For the purposes of this motion, I assume that he refers to his entire discussion of Lee’s injuries.

41 Dr. Scilaris again reviewed Lee’s left knee MRI on June 4, 2019. On that date, he stated that

the MRI revealed a “tear of the body of the medial meniscus, lateral meniscus, as well as

posterior horn of medial meniscus with meniscal capsulate separation laterally.” Id.

September 5, 2018. Id. at 9. On his third visit on June 4, 2019, Dr. Scilaris reviewed Lee’s MRI

results from February 16, 2018, stating that they showed “grade I to II spondylolisthesis at the

L5-S1 level with herniated nucleus pulposus, [and] incidental bilateral kidney cyst formation.”

Id. at 9–10. Dr. Scilaris then generally concludes, without further analysis, that “there is a direct

causal relationship between the [2017 accident] and the injuries described above.” Id. at 10.

iii. Cervical Spine

Based on Dr. Scilaris’s consultation notes, Lee did not complain of neck pain in either of

his first two visits on February 5, 2018 and September 5, 2018. Id. at 9. Dr. Scilaris first

evaluated his alleged cervical spine injuries on June 4, 2019. Id. Defendants submitted evidence,

however, that Lee complained of neck pain to Dr. Gamburg of Hudson Pain Associates as early

as January 24, 2018, approximately one month after the accident. Hudson Pain Management

Reps., Defs.’ Ex. MM (“Lee Gamburg Rep.”) 11, ECF No. 32-41 (stating that Lee complained of

“[n]eck pain with radicular pain to bilateral arms/hands”).

In his last consultation with Lee, Dr. Scilaris reviewed Lee’s cervical spine MRI dated

February 16, 2018, which showed “herniated nucleus pulposus at C3–4, C4–5, C5–6, and C6–7.”

Lee Scilaris Rep. 9. He diagnosed Lee with “[c]ervical herniated nucleus pulposus” and

generally asserted that “the injuries” in his report were caused by the 2017 accident. Id. at 10.

Although Dr. Scilaris tested Lee’s cervical spine range of motion and determined that his lateral

bending was deficient, certain measurements are missing and he did not explain which method

he used to measure range of motion. Id. (“Physical examination of the cervical spine reveals

flexion 70 degrees (normal is 0 to 60 degrees), extension 0 [sic], lateral bending [sic] (normal is

0 to 45 degrees) and turning 30 degrees bilaterally (normal is 0 to 80 degrees).”). He identified a

“left trapezial spasm,” but recorded a negative Spurling test and normal reflexes. Id.

Dr. Scilaris concludes generally that Lee’s “injuries cannot be completely resolved by

further medical intervention, and there will always be aspect[s] of residual permanent injuries

experienced for the balance of Mr. Lee’s lifetime.” Id. at 11.

C. Causation of Lee’s Injuries

Defendants met their initial burden as to the cause of Lee’s left knee and lumbar spine,

but not with regard to Lee’s cervical spine injuries. Dr. Gidumal concluded that his physical

examination, which included a range of motion assessment and several objective tests, as well as

his review of Lee’s post-accident MRI and arthroscopic photographs, revealed no acute injury to

Lee’s left knee and showed evidence only of “old” injuries. For example, he explained that the

arthroscopic photographs and MRI of Lee’s left knee indicated that Lee’s meniscal and ACL

tears were degenerative, highlighting the degeneration of the condyles and the absence of

traumatic chondral defects, kissing lesions, or hemarthrosis to substantiate his conclusion. See

supra Discussion, Part II.A.i. See Arenes, 2006 WL 1517756, at *2, *6 (finding that defendants

met prima facie burden where defendant medical expert reviewed post-accident MRI and,

pointing to specific indicators on the films, concluded that they revealed only age-related

degeneration). Although Dr. Gidumal acknowledged that Lee’s 2018 MRI showed a partial ACL

tear that was not present on the 2016 MRI, he explained that both the MRI and arthroscopic

photographs indicated that the injury was degenerative. Not only did the ACL appear intact on

the arthroscopic photographs, but he also detected no indicators of acute injury on the MRI, such

as “hemarthrosis” or “kissing lesions on the lateral femoral condyle/lateral tibial plateau.”

Similarly, relying on objective evidence, Dr. Gidumal identified only degenerative

conditions in Lee’s lumbar spine. See supra Discussion, Part II.A.ii. He explained Lee’s disc

herniations were degenerative because “[t]he changes had been going on for so long that there

were endplate changes within the vertebra,” as evidenced by Lee’s MRI. Lee also lacked

indicators of traumatic injury, such as “annular tears, bleeding, bone marrow edema or T2 signal

abnormality.” Taken together, these explanations are sufficient to shift the burden to plaintiffs to

demonstrate that Lee’s left knee and lumbar spine injuries were acute.

In contrast, however, Dr. Gidumal did not clearly conclude that Lee’s cervical spine

injuries were degenerative or preexisting, and thus, defendants are unable to meet their initial

burden with regard to the cervical spine. See supra Discussion, Part II.A.iii above. Although Dr.

Gidumal explained that Lee’s cervical spine MRI indicated that the injuries were degenerative,

he did not state a general conclusion, based on his evaluation of all of the evidence at his

disposal, that Lee’s neck injuries were degenerative.

In the relevant portion of his opinion, Dr. Gidumal concluded that “there is no medical

evidence that Mr. Lee sustained any acute back injury.” Id. at 5 (emphasis added). He made no

statement with regard to Lee’s neck, and it is unclear that his reference to Lee’s “back” applies to

both Lee’s cervical spine and lumbar spine injuries. Id. Earlier in the same report, Dr. Gidumal

describes his physical examination of Lee’s lumbar spine under the subheading “back,” while

describing a similar examination of Lee’s cervical spine using the subheading “neck.” Id. at 3.

When describing Lee’s medical history, he stated that “[t]he plaintiff . . . allegedly injured his

left knee, lower back and neck.” Id. at 1. He also stated that “Mr. Lee is alleging a significant and

permanent injury to his neck and lower back as a result of the [2017 accident].” Id. at 4

(emphasis added). Generally, Dr. Gidumal’s assessment that Lee’s cervical spine injuries are

degenerative is persuasive—however, because it is unclear whether Dr. Gidumal referred to

Lee’s cervical spine when stating his conclusion as to Lee’s back, I cannot find that defendants’

have shifted the burden to plaintiffs with regard to Lee’s cervical spine.

Although Dr. Scilaris broadly concluded that all of Lee’s injuries were caused by the

2017 accident, Lee Scilaris Rep. 10, he “did not refute defendant[s’] evidence of a . . .

degenerative condition.” Pommells, 830 N.E.2d at 287 (granting summary judgment for

defendants when, after defendant presented “persuasive evidence that plaintiff’s alleged pain and

injuries were related to a preexisting condition, plaintiff [did not] come forward with evidence

addressing defendant’s claimed lack of causation”); see also Arenes 2006 WL 1517756, at *8

(“When a defendant submits persuasive evidence that a plaintiff’s alleged pain and injuries are

related to a pre-existing condition, the plaintiff has the burden to come forward with evidence

addressing the defendant’s claimed lack of causation; if the plaintiff fails to meet that burden, the

defendant is entitled to summary dismissal of the complaint.”).

Dr. Scilaris’s report was conclusory as to the cause of Lee’s lumbar spine and left knee

injuries, and thus, insufficient to refute defendants’ initial showing. Dr. Scilaris presented

evidence from Lee’s MRIs and his own physical examinations that Lee’s left knee and lumbar

spine were injured. See Lee Scilaris Rep. 9–10. He did not, however, explain how this objective

evidence indicated that Lee’s injuries were caused by the 2017 accident, rather than

degeneration. Id. “The law is clear that a conclusory expert opinion as to causation is insufficient

to defeat a motion for summary judgment.” See Watson-Tobah, 2014 WL 6865713, at *13

(citing Carter, 815 N.Y.S.2d at 43). A medical opinion does not refute defendants’ initial

showing of causation where it is “silent on the possibility of a degenerative condition” and “fails

to consider the evidence of degeneration put forth by [defendants’] experts.” Rhone, 2007 WL

3340836, at *9; see also Arenes, 2006 WL 1517756, at *9 (finding that plaintiffs did not carry

burden where medical expert concluded that plaintiff’s injuries were caused by the relevant

accident, but “d[id] not explicitly address [defendant medical expert’s] findings that plaintiffs’

injuries [we]re the result of a preexisting, degenerative condition” and “d[id] not explain what

le[d] her to [her conclusion regarding causation]”).

Likewise, a report by Dr. Gamburg, Lee’s treating physician, which was submitted by

defendants but also reviewed by Dr. Scilaris in the course of preparing his own report, also fails

to raise a dispute of fact here. See Lee Gamburg Rep.42 After conducting two physical

examinations in January and February 2018 and reviewing Lee’s MRIs, Dr. Gamburg concluded

that the 2017 accident caused Lee’s injuries. Id. at 9. In a prior report, he noted that Lee’s past

medical history was “[n]on-contributory” to injuries and stated, citing no evidence, that “[t]he

patient was doing well with no limitations for activities such as [Activities of Daily Living

(ADL)] and other vocational activities until the accident.” Id. at 11. As with Dr. Scilaris’s report,

however, Dr. Gamburg’s opinion appears to rely on Lee’s statements regarding his condition

prior to the accident and does not explain why the evidence he considers indicates that Lee’s

injuries were acute, rather than degenerative. Because plaintiffs did not present evidence refuting

defendants’ initial showing that Lee’s injuries were degenerative, they failed to raise a genuine

dispute of fact as to the cause of Lee’s left knee and lumbar spine injuries. Accordingly,

defendants are entitled to summary judgment as to Lee’s left knee and lumbar spine claims.

D. Serious Injury as to Lee

As I already discussed, Dr. Gidumal did not clearly indicate whether, considering the sum

of the evidence at his disposal, Lee’s cervical spine conditions were degenerative in nature. See

supra Discussion, Part II.C. Having already found that triable fact disputes remain as to the cause

of Lee’s cervical spine injuries, I also find that defendants have not met their initial burden of

showing that Lee suffered no significant limitation of use of his cervical spine.

42 Dr. Gamburg’s report was affirmed under penalty of perjury. See Lee Gamburg Rep. 9, 15.

Defendants’ medical expert, Dr. Gidumal, acknowledged that Lee’s post-accident MRI

showed disc herniations on several cervical spine vertebrae. See supra Discussion, Part II.A.iii.

Evidence of disc herniations alone are not sufficient to show significant injury. Watson-Tobah,

2014 WL 6865713, at *10 (“[B]ulging or herniated discs are not, in and of themselves, evidence

of serious injury without competent objective evidence of the limitations and duration of the disc

injury.” (quoting DeJesus v. Paulino, 61 A.D.3d 605, 608 (N.Y. App. Div. 2009))); Tsveitel,

2009 WL 2182379, at *5 (same) (citing Guzman v. Paul Michael Mgmt., 266 A.D.2d 508, 509

(N.Y. App. Div. 1999)). However, nearly two years after the accident, Dr. Gidumal also

determined that Lee’s cervical spine range of motion was restricted compared to normal

functioning—Lee’s right and left lateral rotation was 25% below normal and his right and left

lateral bending was 33% below normal. See supra n.31. Because his range of motion test entailed

objectively measuring Lee’s subjective efforts, its results carry less weight than a passive test

would. See Ventra, 121 F. Supp. 2d at 334. It is corroborated, however, by Dr. Gamburg’s post-

accident range of motion testing, which was both active and passive and measured using a

goniometer or arthrodial protractor. Lee Gamburg Rep. 7. In February 2018, Dr. Gamburg

determined that Lee’s range of motion was significantly restricted, each motion revealing

between a 22% and 44% restriction below normal. Id.

Considering Lee’s subjective complaints of pain, Lee Aff. ¶¶ 3–4, 15–16, the presence of

cervical spine disc herniations, and restricted range of motion persisting for approximately two

years, defendants have not made an initial showing that Lee suffered no significant limitation to

his cervical spine. Thus, the burden of raising a genuine fact issue does not shift to plaintiffs. It is

for the jury to determine the extent of Lee’s cervical spine injuries, as well as whether they were

caused by the 2017 accident or age-related degeneration. Because I find that genuine disputes of

fact remain as to whether Lee suffered a significant limitation of the use of his cervical spine as a

result of the 2017 accident, I need not evaluate defendants’ claim that he failed to meet the

permanent consequential limitation or 90/180 standard.

III. Plaintiff Kwon

Kwon alleges that she sustained injuries to her right shoulder, right ankle, cervical spine,

lumbar spine, and thoracic spine from the 2017 accident. See supra Factual Background, Part III.A.

She affirms that she had no injuries or pain to any of these body parts prior to the 2017 accident.

Kwon Aff. ¶¶ 13–14. Defendants maintain that Kwon’s injuries are degenerative, and thus, not

proximately caused by the 2017 accident. Defs.’ Br. 28–30. I find that defendants are entitled to

summary judgment as to Kwon’s right shoulder and right ankle injuries because plaintiffs

demonstrated no genuine dispute of fact that they were proximately caused by the 2017 accident.

I also grant summary judgment as to Kwon’s cervical spine and lumbar spine injuries because

defendants demonstrated that they were not “serious injuries” under the No-Fault Law.

Defendants’ motion is denied with regard to Kwon’s alleged thoracic spine injuries.

A. Summary of Defendants’ Evidence

Defendants’ medical expert, Dr. Gidumal, examined Kwon on October 7, 2019 and

reviewed a selection of her treatment records and diagnostic studies, including records of post-

accident medical treatment from January to March 2018, records of her right shoulder

arthroscopy dated March 16, 2018, and various MRIs from January through March 2018. Kwon

Gidumal Rep. 1–3.

i. Right Shoulder

Dr. Gidumal concluded that Kwon’s right shoulder MRI, intraoperative findings, medical

records, and his own physical evaluation revealed “no evidence that [she] sustained a significant

or permanent injury to her right shoulder as a result of the [2017 accident].” Id. at 6. Based on his

physical examination of Kwon’s right shoulder, Dr. Gidumal reported that she had a normal

range of motion,43 no swelling, atrophy, signs of impingement, subdeltoid or scapulothoracic

crepitus, pain at her A-C joint, tenderness, or deformity. Id. at 4. Kwon’s belly press and liftoff

tests were negative. Id.44

Additionally, he maintained that his review of Kwon’s right shoulder MRI revealed “no

evidence of any acute injury,” as there was “no swelling, bone marrow edema, soft tissue

contusion or marrow edema.” Id. at 6. Rather, “[t]he MRI showed evidence of long-standing

abnormalities in the shoulder with a grossly enlarged and thickened biceps tendon. There was

hypoplasia of the anterior and posterior labrum consistent with partial tears. The glenohumeral

and acromioclavicular joint showed degenerative arthritis with impingement upon the rotator

cuff.” Id. The MRI findings were “consistent with long-standing degenerative changes with

degenerative arthritis and thickening of the tendons with no evidence of acute injuries.” Id.

His opinion that Kwon’s injuries were degenerative was bolstered by his review of

Kwon’s right shoulder arthroscopy records and intraoperative photographs, which revealed no

evidence of a traumatic tear. Id. He explained that “[t]he intraoperative [arthroscopic] evaluation

showed evidence of an impingement syndrome . . . . An impingement syndrome is in age-related,

43 As previously discussed, see supra Discussion, Part I.A.ii n. 23, Dr. Gidumal determined

plaintiffs’ range of motion by measuring their voluntary movements with a goniometer. Kwon

Gidumal Rep. 4.

44 Citing no authority, plaintiffs maintain that Dr. Gidumal’s report should be rejected as

“arbitrary and cursory” because he failed to “conduct necessary objective test[s], such as

O’Brien’s test, to assess [Kwon’s] labral tear injuries to the right shoulder.” Pls.’ Br. 22. I

disagree, as Dr. Gidumal’s opinion relies on several forms of objective evidence, including an

MRI and arthroscopic photographs.

degenerative or congenital condition. It is not a traumatic condition.” Id. Furthermore, the

arthroscopic photographs demonstrated that the superior and anterior labrum were “fray[ed],”

and thus, did not show a traumatic tear. Id.

ii. Right Ankle

Dr. Gidumal also concluded that “based on the medical records, the MRI findings[, and]

my examination there is no evidence that Ms. Kwon sustained a significant or permanent injury

to her right ankle as a result of the [2017 accident].” Id. at 6.45 In his opinion, Kwon’s right ankle

MRI demonstrated only “age-related degeneration with some joint space narrowing

(degenerative arthritis) and tendinosis (age-related degeneration of the tendon) and no evidence

of any acute injuries.” Id. at 5. He noted that “[t]here was no evidence of any ligament tears or

even a minor ankle sprain” which might indicate acute injury. Id.

Dr. Gidumal’s conclusion was supported by his physical examination of Kwon, during

which he observed her walking with no limp or aid, no swelling, ecchymosis, pain in the tibia or

fibula, pain in the peroneal tendon, or atrophy. Id. at 3. Her anterior drawer test was negative and

her range of motion normal. Id. Dr. Gidumal noted point tenderness only along the anterior

capsule. Id.

iii. Cervical Spine

Although Dr. Gidumal concluded that there was “no object[ive] evidence of any

significant or permanent injury to [Kwon’s] neck,” he acknowledged that Kwon’s cervical spine

45 Plaintiffs argue that Dr. Gidumal “failed to opine regarding the causation/permanency of

Plaintiff Kwon’s right ankle injuries[.]” Pls.’ Br. 25. To the contrary, as summarized here, Dr.

Gidumal clearly outlined his findings as to the cause and severity of Kwon’s alleged ankle

injury, presenting persuasive evidence that the ankle injuries were degenerative, rather than

acute.

MRI showed “loss of the disc height at C3-C4 with a 5 mm central and left paracentral disc

herniation with central and left lateral recess spinal stenosis.” Id. at 5. He did not explain why he

concluded that the C3-C4 disc herniation was a degenerative, rather than acute, injury.

Dr. Gidumal stated that the plaintiff’s EMG/NCV tests46 revealed “minor abnormalities”

on a different vertebra, the left C5-C6 region of the cervical spine. In contrast to the EMG/NCV

results, however, the MRI presented “minor abnormalities” on the opposite side—the right C5-

C6 region. Id. at 3, 5. Based on this discrepancy, Dr. Gidumal concluded that the abnormalities

were “within normal limits and show no object[ive] evidence of an acute or significant injury to

the neck or lower back.” Id. at 5. During his physical examination, he noted that Kwon had a

normal range of motion with subjective complaints of pain and “mild tenderness over the midline

and over the bilateral paraspinal muscles.” Id. at 4.

iv. Lumbar Spine

Similarly, Dr. Gidumal noted multilevel disc bulging on Kwon’s lumbar spine MRI, but

opined that there was “no object[ive] evidence of any significant or permanent injury to

[Kwon’s] . . . lower back.” Id. at 5. In his physical examination, he observed that she had normal

lumbar lordosis, level iliac crests and no pelvic rotation, scoliosis, or leg length deficiency. Id. at

3. Kwon’s range of motion was normal,47 although she complained of pain. Id. Dr. Gidumal

documented no Valsalva signs and negative Kemp and Patrick test results. Id. An EMG/NCV of

Kwon’s lower back and lower extremities indicated that Kwon’s responses were normal and Dr.

46 No EMG/NCV tests were included in the record.

47 Dr. Gidumal’s report summarized an evaluation by Dr. Tak conducted on January 5, 2018,

within a month of the 2017 accident. Dr. Tak allegedly reported that Kwon’s lumbar spine

demonstrated a limited range of motion. Kwon Gidumal Rep. 1. As the original report was not

included in the record and this summary states neither the measurement method nor the extent of

the limitation, I disregard this finding.

Gidumal observed no evidence of myelopathy, radiculopathy or nerve root irritation. Id. at 2–3,

5. Despite these findings, Dr. Gidumal did not explain why the disc bulging that he identified on

her MRI was degenerative, rather than acute.

v. Thoracic Spine

Although Dr. Gidumal reportedly examined Kwon’s thoracic spine MRI, which showed

multilevel disc bulging, see id. at 3, he makes no explicit finding as to the cause or severity of

Kwon’s alleged thoracic spine injuries, see id. at 4–6 (finding no causation as to Kwon’s neck

and lower back injuries, but not mentioning Kwon’s alleged thoracic spine injuries).

B. Plaintiffs’ Response

On June 18, 2019, Dr. Scilaris prepared a report following two physical examinations on

February 5, 2018 and June 4, 2019, as well as a review of Kwon’s right shoulder, right ankle,

and cervical, lumbar, and thoracic spine MRIs. Kwon Scilaris Rep. 8–9. As with Lee, Dr. Scilaris

stated a blanket finding of causation as to all of Kwon’s injuries, concluding that “with a

reasonable [degree] of medical probability, there is a direct causal relationship between the [2017

accident] and the injuries described above.” Id. at 11. At no point, however, does he address Dr.

Gidumal’s findings that Kwon’s right shoulder and right ankle injuries were degenerative.

i. Right Shoulder

As to Kwon’s right shoulder injuries, Dr. Scilaris notes that she complained of right

shoulder pain during her February 5, 2018 consultation. Id. at 9. A physical examination revealed

“mild-to-moderate impingement, forward flexion and abduction of 160 and 140 degrees with

pain and apprehension and bicipital groove tenderness.” Id. He reported that Kwon experienced

limited range of motion in her shoulder, without describing how his range of motion test was

conducted. Id. at 9–10. Although Dr. Scilaris reviewed and summarized Kwon’s right shoulder

MRI and arthroscopy records, he did not explain why this evidence indicated that her injuries

resulted from acute trauma, rather than degeneration. Id.

Dr. Scilaris diagnosed Kwon with “[s]tatus post right shoulder arthroscopy performed by

Dr. Wert with possible recurrent rotator cuff or labral tear.” Id. at 10 (emphasis added). At no

point did he address the issue of causation raised by defendants, besides stating generally that

Kwon’s injuries were caused by the 2017 accident.

ii. Right Ankle

In a similar vein, Dr. Scilaris noted that on February 4, 2018, Kwon complained of pain

in her right ankle and he observed “swelling along the lateral gutter,” neutral dorsiflexion, and

“plantar flexion [of] 40 degrees with painful inversion at 15 and 20 degrees.” Id. at 9. In addition

to documenting tenderness in Kwon’s anterolateral ankle and anterior syndesmosis, Dr. Scilaris

avers that Kwon’s range of motion was more restricted during her June 2019 consultation, with a

dorsiflexion of 15 degrees and plantar flexion of 35 degrees, both slightly below normal. Id. at

10. Again, Dr. Scilaris did not explain what method he used to measure Kwon’s range of motion.

He noted, without analysis, that Kwon’s right ankle MRI revealed Achilles tendinosis/tendonitis.

Id. at 9. To conclude, Dr. Scilaris diagnosed Kwon with right ankle tenosynovitis, without

explaining why he determined that the condition was caused by trauma rather than long-term

degeneration. Id. at 10.

iii. Cervical, Lumbar, and Thoracic Spine

Dr. Scilaris’s findings as to Kwon’s alleged spinal injuries are scant, at best. Although he

met with Kwon in February 5, 2018, his records show that she did not complain of any spinal

injury during the consultation. Id. at 9. Over a year later, on June 4, 2019, he reported that Kwon

complained of intermittent back and neck pain. Id. at 10. His findings as to her range of motion

are incomplete, and therefore, of no probative value. He reports that “[p]hysical examination of

the cervical spine reveals flexion 80 degrees (normal is 0 to 60 degrees), extension 0, mild pain

with lateral bending and turning.” Id. Likewise, he states that “[p]hysical examination of the

thoracolumbar spine48 reveals flexion to 80 degrees (normal is 0 to 60 degrees), extension 0.” Id.

In neither case did he indicate how he measured Kwon’s range of motion, compare each

measurement to a normal range, or include all of the relevant measurements for the body part. He

reported that Kwon’s Spurling test was negative and her straight leg test equivocal. Id. at 10.

Consistent with Dr. Gidumal, Dr. Scilaris noted that Kwon’s 2018 cervical spine MRI

showed “herniated nucleus pulposus at C3-C4.” Id. at 9. MRIs of Kwon’s lumbar and thoracic

spine each showed “multilevel disc bulging.” Id. On the basis of this evidence, he diagnosed Kwon

with “[c]ervical thoracolumbar derangement” and opined that “her injuries cannot be completely

resolved by further medical intervention, and there will always be aspect[s] of residual permanent

injuries experienced for the balance of Ms. Kwon’s lifetime.” Id. at 10–11.

iv. Kwon’s Affidavit

Kwon submitted an affidavit averring that she never experienced pain in any of the relevant

body parts prior to the accident, but since the accident, suffers daily pain in each. Kwon Aff. ¶¶

14–18. She also claims that her “daily life has been significantly altered.” Id. ¶ 19. Specifically,

she notes that

[she] can no longer [play] tennis. Moreover, [she has] difficulty performing various

activit[ies] such as lifting heavy items, standing [for] an extended period of time,

sitting for an extended period of time, walking for a prolonged period of time and

doing household chores such as cleaning and doing dishes and laundry.

Id. She also maintains that she was treated for her injuries three times per week at Baarn Rehab

and Pain Clinic from January 10, 2018 to March 15, 2018 and again from December 18, 2018 to

48 The thoracolumbar spine encompasses both the lumbar and thoracic spinal regions.

March 11, 2019.49 Id. ¶ 4. She stopped her treatment because further treatment would be palliative.

Id.

C. Causation

By submitting persuasive evidence that Kwon’s right ankle and shoulder injuries are the

result of degeneration rather than acute trauma from the 2017 accident, defendants have met their

initial burden with regard to those injuries, shifting the burden of proof to plaintiffs to raise a

genuine dispute of fact as to their cause. Defendants did not make the same showing, however,

with regard to Kwon’s cervical spine, lumbar spine, or thoracic spine injuries, so the burden does

not shift with regard to those injuries.

For both Kwon’s right shoulder and right ankle injuries, Dr. Gidumal concluded that the

objective evidence demonstrated only degenerative changes, rather than acute injury. See supra

Discussion, Part III.A.i–ii. For both regions, he highlighted indications on Kwon’s MRIs that

signaled that her injuries were acute—for example, the absence of “swelling, bone marrow edema,

soft tissue contusion or marrow edema” on her shoulder or “any ligament tears or even a minor

ankle sprain” on her ankle. Additionally, he identified signs of degenerative arthritis in both

regions. His assessment of Kwon’s right shoulder MRI was corroborated by her intraoperative

photographs, on which he observed evidence of impingement syndrome, a degenerative condition,

and fraying of her labrum. With regard to both regions, therefore, defendants shift the burden to

plaintiffs to show causation.

By contrast, Dr. Gidumal concluded that Kwon’s cervical spine was not injured in the 2017

accident, but did not explain how he determined that the C3-C4 disc herniation identified on her

49 Neither defendants nor plaintiffs submitted records of the treatment Kwon allegedly received

here.

2018 MRI was unrelated to the accident. See supra Discussion, Part III.A.iii. In a similar vein, Dr.

Gidumal identified multilevel disc bulging on Kwon’s lumbar spine MRI, but did not explain why

such an injury was degenerative. See supra Discussion, Part III.A.iv. Lastly, Dr. Gidumal did not

opine as to the cause of Kwon’s thoracic spine injury at all. See supra Discussion, Part III.A.v .

Summarizing Kwon’s thoracic spine MRI finding of multilevel disc bulging, without more, cannot

carry defendants’ burden. Thus, at summary judgment, Dr. Gidumal’s opinion and defendants’

supporting evidence is insufficient to show an intervening cause of Kwon’s cervical, lumbar, or

thoracic spine injuries. The burden does not shift to plaintiffs with regard to the cause of Kwon’s

spinal injuries.

Plaintiffs did not demonstrate a genuine dispute of fact as to the cause of Kwon’s right

shoulder or ankle injuries. Dr. Scilaris’s medical opinion offers a blanket statement that all of

Kwon’s injuries were caused by the 2017 accident. See supra Discussion, Part III.B.i–ii above. He

fails to explain, however, how his physical examination or review of her MRIs and other medical

records showed that her injuries were acute, rather than degenerative and preexisting. For example,

Dr. Scilaris diagnosed Kwon as “[s]tatus post right shoulder arthroscopy performed by Dr. Wert

with possible recurrent rotator cuff or labral tear.” Besides presenting an equivocal statement as to

her rotator cuff and labral tears, he did nothing to rebut Dr. Gidumal’s determination that Kwon’s

degenerative arthritis, impingement, and frayed labral tear indicated that these conditions were

degenerative. He advanced the same inadequate argument for Kwon’s right ankle injuries, stating

that Kwon’s MRI indicated that she suffered from Achilles tendinosis/tendonitis, but avoiding any

explanation relating that finding to the 2017 accident. Thus, defendants are entitled to summary

judgment as to Kwon’s right shoulder and ankle injuries.

D. Serious Injury

Although defendants did not meet their initial burden as to the cause of Kwon’s spinal

injuries, they have made an initial showing that Kwon’s cervical spine and lumbar spine injuries

are neither a “permanent consequential limitation of use of a body organ or member [nor a]

significant limitation of use of a body function or system,” shifting the burden to plaintiffs.

Plaintiffs have not adduced sufficient evidence to raise a genuine dispute of fact.

Defendants’ expert, Dr. Gidumal, concluded that Kwon did not suffer from a significant or

permanent injury to her neck or lower back. His physical examination yielded no signs of injury

beyond Kwon’s subjective complaints of pain and a normal range of motion test for both spinal

regions. Although he identified multilevel disc bulging of the lumbar spine and a herniated disc at

the C3-C4 cervical spine vertebrae on Kwon’s 2018 MRIs, evidence of disc bulging or a herniated

disc without proof of a corresponding limitation is insufficient to show “serious injury.” Young

Sung Lee, 718 F. App’x at 15; Watson-Tobah, 2014 WL 6865713, at *10. Dr. Gidumal’s report,

therefore, is sufficient to shift the burden to plaintiffs.

Plaintiffs, in turn, failed to meet their corresponding burden with regard to Kwon’s cervical

and lumbar spine injuries. Kwon’s medical expert, Dr. Scilaris, did not show that Kwon suffered

any limitation as a result of her lumbar or cervical spine injuries. See supra Discussion, Part

III.B.iii. Based on his June 4, 2019 physical examination, his record of Kwon’s cervical and lumbar

spine ranges of motion were incomplete. Other tests conducted during examination indicated that

Kwon experienced no limitations and suffered no injury to the relevant body parts—for example,

Kwon’s Spurling test was negative and her straight leg test equivocal. Kwon’s spinal injuries were

not referenced at all during her earlier consultation with Dr. Scilaris in February 2018. Like Dr.

Gidumal, Dr. Scilaris identified signs of multilevel disc bulging of the lumbar spine and herniated

nucleus pulposus at the cervical spine’s C3-C4 vertebrae on Kwon’s MRIs, but without evidence

showing a physical limitation stemming from the condition, evidence of these conditions alone is

insufficient to meet plaintiffs’ burden. See Evans, 978 F. Supp. 2d at 165 (quoting Katiraeifar,

1999 WL 425907, at *1).

Similarly, plaintiffs did not raise a genuine dispute of fact that Kwon’s lumbar and cervical

spinal injuries “prevented [her] ‘from performing [her] usual activities to a great extent, rather than

some slight curtailment’ for ninety of the 180 days following the accident.” Id. at 166 (quoting

Licari, 441 N.E.2d at 1091). A plaintiff must support her 90/180 standard claim with “objective

evidence of ‘a medically determined injury or impairment of a non-permanent nature.’” Toure,

774 N.E.2d at 1204. “[T]he ninety days requirement must be taken literally.” Arenes, 2006 WL

1517756, at *9 (citing Licari, 441 N.E.2d at 1091).

“[C]ourts have generally found a defendant’s initial burden [for a 90/180 standard claim]

met where the plaintiff worked for more than ninety of the one hundred and eighty days following

an accident or returned to work soon after the accident.” Perpall, 2017 WL 1155764, at *26

(collecting cases); Tsveitel, 2009 WL 2182379, at *4 (determining that “plaintiffs [could not]

plausibly claim that their daily activities were curtailed for ninety of the first one hundred eighty

days following the . . . accident” because the record showed that each plaintiff was confined to

his/her home for seven days or fewer and returned to work in the same amount of time); Fludd v.

Pena, 997 N.Y.S.2d 14, 16 (N.Y. App. Div. 2014) (granting defendants’ summary judgment

motion where plaintiff’s deposition testimony established that she returned to work on limited duty

as a police officer eight weeks after her injury); Marks v. Brown, 3 A.D.3d 648, 650–651 (N.Y.

App. Div. 2004) (dismissing plaintiff’s 90/180 standard claim where she missed one day of work,

was restricted in her ability to sit, stand, and lift when she returned to work, had difficulty sleeping,

and performed household chores more slowly following an accident). Although a partial restriction

from performing work duties may, in some circumstances, be sufficient to substantiate a 90/180

standard claim, plaintiffs made no such showing here. See Perpall, 2017 WL 1155764, at *26

(“The fact that a plaintiff returns to work during the relevant period does not necessarily defeat a

claim of serious injury.” (quoting Sanchez, 658 F. Supp. 2d at 509–10) (denying summary

judgment for defendants when plaintiff returned to work after eleven days with restrictions on her

ability to sit, bend, and lift, and was unable to perform household chores)); see also Nigro v.

Penree, 661 N.Y.S.2d 137, 138 (N.Y. App. Div. 1997) (denying summary judgment for defendants

because, although plaintiff returned to work two weeks after accident, he was “unable to perform

the activities of his profession” for more than ninety days).

Both parties agree that Kwon’s injuries did not totally prevent her from working as a

restaurant owner and operator. Defs.’ 56.1 ¶ 49; Pls.’ 56.1 ¶ 49. Plaintiffs admit that Kwon returned

to work with no limitations after approximately seventy days, stating in their response to

defendants’ interrogatories that Kwon “was not partially incapacitated from employment from

March of 2018 to December of 2018.” Ans. to Interrogs. ¶ 11. Because the accident took place on

December 21, 2017, Kwon would have needed to experience a substantial partial restriction to her

employment duties for ninety days in the period before June 19, 2018. The first ninety-day period

concluded on March 21, 2018. Thus, by Kwon’s admission that she returned to work and

experienced no restrictions as of March 2018, she was not incapacitated from her work duties for

the requisite amount of time. See Perpall, 2017 WL 1155764, at *26 (finding that defendants met

initial burden by relying on plaintiff’s deposition testimony to show that “she only missed about

two months of work after the 2010 accident”).

Furthermore, in the instant case, it is undisputed that Kwon was confined to her residence

for only five days following the accident and an additional three days after her arthroscopy in

March 2018, both within the 180-day window allowed by the No-Fault Law. Defs.’ 56.1 ¶ 48; Pls.’

56.1 ¶ 48. Kwon maintains that, as a result of the accident, she has difficulty performing household

chores, lifting, and sitting, standing, walking for prolonged periods of time. Kwon Aff. ¶ 19. Kwon

also avers that she can no longer play tennis, but fails to establish the frequency with which she

played tennis before the accident. Id. In Brusso v. Imbeault, the district court granted summary

judgment for defendants where plaintiff had “offered only her own deposition testimony

describing that she no longer engages in certain household chores, such as vacuuming and laundry,

and no longer enjoys bicycling or camping without pain,” noting that “[n]o evidence exist[ed] in

the record establishing the frequency with which she engaged in those activities prior to the

accident or that those activities became more difficult during 90 of the first 180 days following the

accident.” 699 F.Supp.2d at 583; see also Mercado, 2008 WL 4963985, at *6 (finding that

plaintiff’s affirmation that he could not play sports, was limited in his activities with teenage son,

and could not lift young son were insufficient because he did not “provide[] evidence showing that

sports and interacting with his sons were a substantial part of his daily activities” (citing Covey v.

Simonton, 481 F. Supp. 2d 224, 240 (E.D.N.Y.2007) and Cooper v. Dunn, No. 99-Civ-6903(ILG),

2001 WL 138864, at *11 (E.D.N.Y. Jan. 2, 2001))).

Although Kwon’s medical expert, Dr. Scilaris, examined her during the first ninety-day

period on February 5, 2018, he did not mention her spinal injuries at all. Kwon Scilaris Rep. 9

(referencing only Kwon’s right ankle and shoulder complaints). His notes from that visit do not

indicate that he curtailed Kwon’s activities at work or in her daily life in any way.50 Id.; see Singh

50 Dr. Gidumal’s medical report summarizes two consultations between Kwon and Dr. Tak on

January 5, 2018 and February 26, 2018. Kwon Gidumal Rep. 1–2. Neither plaintiffs nor

defendants introduced Dr. Tak’s notes themselves into the record. Dr. Tak documented Kwon’s

subjective complaints of pain in her neck and back in January and her complaints that the pain

intensifies when sitting, standing, walking, and getting out of bed in February. Id. This summary

v. Maresco, No. 04-CV-1439 (JG)(CLP), 2008 WL 324360, at *8 (E.D.N.Y. Feb. 6, 2008) (“Even

if [plaintiff] had presented evidence sufficient to support a jury finding that he refrained from his

usual and customary activities for the necessary time period, his claim would fail because he must

also provide competent medical testimony that he was unable to engage in his usual and customary

activities because of injuries sustained (or exacerbated by) the accident at issue.”). Thus, plaintiffs

have not met their burden of showing that Kwon’s cervical or lumbar spine injuries were “serious”

under the 90/180 standard and defendants are entitled to summary judgment as to those injuries.

Finally, defendants made no initial showing as to Kwon’s thoracic spine injuries. Dr.

Gidumal merely summarized the findings from Kwon’s thoracic MRI, but stated no conclusion as

to the alleged injury’s cause, severity, or duration. The burden does not shift to plaintiffs to prove

significant or permanent limitation of Kwon’s thoracic spine, and thus, this claim survives

summary judgment. Given the paucity of evidence pertaining to Kwon’s thoracic spine in general,

however, it is extremely unlikely that plaintiffs will prevail on this claim.

CONCLUSION

Defendants’ motion for summary judgment is granted in part and denied in part.

Defendants demonstrated that the following injuries were not proximately caused by the 2017

accident: Kang’s left shoulder, right knee, lumbar spine and cervical spine injuries; Lee’s left knee

and lumbar spine injuries; and Kwon’s right shoulder and right ankle injuries. Defendants also

demonstrated that Kwon’s lumbar spine and cervical spine injuries are not “serious” pursuant to

the No-Fault Law. Accordingly, defendants are entitled to summary judgment on each of those

injuries. Genuine disputes of material fact as to whether Kang’s head injury, Lee’s cervical spine

does not indicate, however, that Dr. Tak placed a medical restriction on Kwon’s activities as a

result of her spinal conditions.

injury, and Kwon’s thoracic spine injury qualify as “serious injuries” pursuant to the No-Fault Law

or were caused by the 2017 accident preclude summary judgment at this time.

SO ORDERED.

_________/s/___________

Allyne R. Ross

United States District Judge

Dated: August 14, 2020

Brooklyn, New York