Comba v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANNMARIE COMBA,

Plaintiff, MEMORANDUM AND ORDER

- against - 2:19-cv-1127 (DRH) (AKT)

UNITED STATES OF AMERICA,

Defendant.

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APPEARANCES

SCHWARTZAPFEL LAWYERS, P.C.

Attorneys for Plaintiff

600 Old Country Road, Suite 450

Garden City, NY 11530

By: Tanya M. Demaio, Esq.

MARK J. LESKO

ACTING UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF

NEW YORK

Attorneys for Defendant

610 Federal Plaza, 5th Floor

Central Islip, NY 11722

By: Mary M. Dickman, Esq.

HURLEY, Senior District Judge:

INTRODUCTION

Plaintiff Annmarie Comba (“Plaintiff”) brought this action against Defendant

United States of America (“Defendant”) under the Federal Tort Claims Act, alleging

injury from a rear-end collision caused by a United States Defense

Counterintelligence and Security Agency employee’s negligence. Presently before the

Court is Plaintiff’s motion for summary judgment on the issue of liability and

Defendant’s cross-motion for summary judgment on the issues of damages and

causation, both pursuant to Federal Rule of Civil Procedure 56. For the reasons set

forth below, Plaintiff’s motion is GRANTED and Defendant’s cross-motion is

GRANTED IN PART and DENIED IN PART.

BACKGROUND

The following facts, taken from the parties’ Local Rule 56.1 statements, are

undisputed unless otherwise noted. (Pl. Statement of Material Facts (“Pl. 56.1”) [DE

39-2]; Def. Responses to Plaintiff’s Statement of Material Facts (“Def. Resp. 56.1”)

[DE 47-1]; Def. Statement of Undisputed Facts (“Def. 56.1”) [DE 46-1]); Pl. Response

Statement of Material Facts (“Pl. Resp. 56.1”) [DE 50]1).

On the afternoon of November 16, 2017, Plaintiff Annmarie Comba, driving

eastbound on the Southern State Parkway in Long Island, New York, slowed her

vehicle to a stop due to traffic ahead, near Exit 22. (Pl. 56.1 ¶¶ 1, 5; Def. 56.1 ¶¶ 3,

5). Heather West, a Defense Counterintelligence and Security Agency employee

driving a vehicle owned by General Services Administration, an independent agency

of Defendant, rear-ended Plaintiff’s vehicle. (Pl. 56.1 ¶¶ 5, 7; Def. 56.1 ¶¶ 2–3).

Plaintiff estimated West’s speed at twenty-five miles-per-hour, (Pl. 56.1 ¶ 5; Def. 56.1

¶ 24); West estimated her speed at approximately five-to-six miles-per-hour, (Def.

56.1 ¶ 5). Plaintiff and West pulled over to the side of the road and called the police,

(Pl. 56.1 ¶ 5; Def. 56.1 ¶ 9), who filed a Police Accident Report, (see Ex. C (“Police

1 Plaintiff’s Response to Defendant’s Statement of Material Facts functions both

as a rebuttal to Defendant’s version of the facts as well as an attorney affidavit

introducing certain exhibits. See Pl. Resp. 56.1.

Accid. Rpt.”) [DE 39-6] to Aff. of Tanya M. DeMaio (“DeMaio Aff.”) [DE 39-1]).2 The

Police did not issue any tickets, nor was an ambulance called. (Def. 56.1 ¶ 16).

But Plaintiff claims she began suffering back, neck, and shoulder pain as a

result and as early as that evening. (Def. 56.1 ¶ 27). Specifically, she alleges the

following injuries: (i) intrasubstance tear posterior stenoid labrum of the right

shoulder; (ii) supraspinatus and subscapularis tendinopathy of the right shoulder;

(iii) impingement syndrome of the right shoulder; (iv) disc herniations at C4–5, C5–

6, and C6–7; (v) subligamentous posterior disc bulge at C3–4; (vi) subligamentous

posterior disc bulge at Tl–2; (vii) straightening of the cervical lordosis; and (viii) disc

herniations at L4–5 and L5–S1. (Pl. Resp. 56.1 ¶ 4). Plaintiff has no relevant medical

history as to her right shoulder; that is, she had never felt any shoulder pain until

the collision. (Def. 56.1 ¶¶ 107–30; Pl. Resp. 56.1 ¶ 8; Nov. 9, 2020 Report of Dr.

Frank S. Segreto (“Nov. 9, 2020 Segreto Rpt.”), Ex. D [DE 50-4] to Pl. Resp. 56.1).

The day after the collision, Plaintiff began to seek treatment by visiting her

primary care doctor, Dr. Marc Lewandoski, D.O., who gave her a Toradol injection, a

Robaxin prescription, and a same-day referral for x-rays. (Def. 56.1 ¶¶ 30–38). Her

treatment later involved physical therapy and chiropractic care from Dr. Anthony

Ippolito, D.C., (id. ¶¶ 39, 41; Pl. Resp. 56.1 ¶ 6), neurological care from Dr. Iqbal

Merchant, M.D., (Def. 56.1 ¶¶ 51–58), and acupuncture, (id. ¶ 40). Dr. Ippolito

2 Because Defendant does not contest liability, (see infra Discussion Section I),

the Court does not describe the weather or West’s malfunctioning brakes, the details

of which the parties disagree, (compare, Pl. 56.1 ¶¶ 5, 9–10, with Def. 56.1 ¶¶ 4, 6.)

ultimately referred Plaintiff to Dr. Frank Segreto, M.D., an orthopedic surgeon. (Id.

¶ 41; Pl. Resp. 56.1 ¶ 6).

Plaintiff first saw Dr. Segreto on December 6, 2017, i.e., less than three weeks

after the collision. (Def. 56.1¶ 42). At the first visit, Dr. Segreto noted Plaintiff’s

“painful range of motion in her right shoulder” and “assessed ‘multiple trauma closely

related [to a] motor vehicle accident [and] right shoulder derangement.’” (Id. ¶¶ 44–

45; see Nov. 9, 2020 Segreto Rpt.). He then directed Plaintiff to obtain an MRI of her

right shoulder and instructed her to continue physical therapy and chiropractic

treatment. (Def. 56.1 ¶ 46; Nov. 9, 2020 Segreto Rpt.).

Plaintiff’s MRI, taken February 2, 2018, revealed “an intrasubstance tear of

the posterior glenoid; labrum supraspinatus and subscapularis tendinopathy; and

acromioclavicular hypertrophic changes associated with impingement syndrome.”

(Def. 56.1 ¶ 67; Feb. 2, 2018 MRI Report, Ex. C [DE 50-3] to Pl. Resp. 56.1). At a

follow-up visit two weeks later, Dr. Segreto noted, inter alia, Plaintiff’s “pain with

decreased range of motion,” coupled with “increasing weakness[,] of the right

shoulder.” (Def. 56.1 ¶¶ 68–70; Nov. 9, 2020 Segreto Rpt.). In other office notes taken

in subsequent visits, Dr. Segreto observed Plaintiff’s “feel[ing that] she is improving”

and “full” range of motion in her right shoulder – but also “pain,” “discomfort,” and

“weakness” notwithstanding. (Def. 56.1 ¶¶ 75–76, 83, 85, 90–93). Dr. Segreto has

recommended surgery: an arthroscopic labral repair of her right shoulder, (Def. 56.1

¶ 70; Nov. 9, 2020 Segreto Rpt.), but Plaintiff has declined thus far, (e.g., Def. 56.1

¶¶ 73, 75; Nov. 9, 2020 Segreto Rpt.). In lieu of surgery, Dr. Segreto has administered

cortisone injections to Plaintiff’s shoulder. (Def. 56.1 ¶¶ 81, 89). He has diagnosed

her right shoulder injury as a “permanent partial disability . . . clearly causally

related to” Plaintiff’s collision. (Nov. 9, 2020 Segreto Rpt.).

Dr. Mark G. Creighton, M.D., an orthopedist, conducted Plaintiff’s

Independent Medical Examination on January 6, 2020. (Def. 56.1 ¶¶ 140–53; Ex. 15

[DE 46-8] to Decl. of Mary M. Dickman (“Dickman Decl.”) [DE 46-2]). Dr. Creighton

found “mild tenderness lateral to the acromion,” with positive signs of impingement,

leading him to conclude that Plaintiff’s injury was “more consistent with a chronic

preexisting injury” and not “related in any way” to the rear-end collision. (Def. 56.1

¶¶ 141, 146; Ex. 15 to Dickman Decl.).

Plaintiff has incurred $22,127.94 in medical bills, of which her insurer has paid

$12,958.74. (Def. 56.1 ¶¶ 102–03). She also claims $500 in property damages and

$1,000,000.00 in “personal injur[y]” damages. (Id. ¶105).

Plaintiff instituted this action in December 2018. [DE 1]. Summary judgment

motion practice began in September 2020. [DE 39].

LEGAL STANDARD

Summary judgment, pursuant to Rule 56, is appropriate only where the

movant “shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The relevant

governing law in each case determines which facts are material; “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). When making this determination, a court must view all facts “in the

light most favorable” to the non-movant, Tolan v. Cotton, 572 U.S. 650, 656–57 (2014),

and “resolve all ambiguities and draw all permissible factual inferences in favor of

the [non-movant],” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry

v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). Thus, “[s]ummary judgment is

appropriate [only] where the record taken as a whole could not lead a rational trier

of fact to find for the [non-movant].” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)) (internal quotation marks omitted).

To defeat a summary judgment motion properly supported by affidavits,

depositions, or other documentation, the non-movant must offer similar materials

setting forth specific facts demonstrating that there is a genuine dispute of material

fact to be tried. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The non-movant

must present more than a “scintilla of evidence,” Fabrikant v. French, 691 F.3d 193,

205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or “some metaphysical doubt

as to the material facts,” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)

(quoting Matsushita, 475 U.S. at 586–87), and “may not rely on conclusory allegations

or unsubstantiated speculation,” id. (quoting FDIC v. Great Am. Ins. Co., 607 F.3d

288, 292 (2d Cir. 2010)).

The district court considering a summary judgment motion must also be

“mindful . . . of the underlying standards and burdens of proof,” Pickett v. RTS

Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252),

because the “evidentiary burdens that the respective parties will bear at trial guide

district courts in their determination[s] of summary judgment motions,” Brady v.

Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). “[W]here the [non-movant] will

bear the burden of proof on an issue at trial, the moving party may satisfy its burden

by pointing to an absence of evidence to support an essential element of the [non-

movant’s] case.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.

2014) (quoting Brady, 863 F.2d at 210–11) (internal quotation marks omitted).

Where a movant without the underlying burden of proof offers evidence that the non-

movant has failed to establish his claim, the burden shifts to the non-movant to offer

“persuasive evidence that his claim is not ‘implausible.’” Brady, 863 F.2d at 211

(citing Matsushita, 475 U.S. at 587). “[A] complete failure of proof concerning an

essential element of the [non-movant’s] case necessarily renders all other facts

immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

DISCUSSION

The Federal Torts Claims Act (“FTCA”) enables suits “(1) against the United

States, (2) for money damages, . . . (3) for injury or loss of property, or personal injury

or death (4) caused by the negligent or wrongful act or omission of any employee of

the Government (5) while acting within the scope of [her] office or employment,

(6) under circumstances where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where the act or omission

occurred.” Brownback v. King, — U.S. —, 141 S.Ct. 740, 746 (2021) (quoting FDIC v.

Meyer (“Meyer”), 510 U.S. 471, 475–476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)); see

28 U.S.C. § 1346(b)(1). As an initial matter, then, “the FTCA directs courts to consult

state law to determine whether the government is liable for the torts of its

employees,” Meyer, 510 U.S. at 478, because state law is “the source of substantive

liability under the FTCA,” Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012).

The at-issue collision and Plaintiff’s injuries occurred in New York, meaning

New York state law applies. Pl. 56.1 ¶ 1; Def. 56.1 ¶¶ 3, 7; Police Accid. Rpt.; e.g.,

Avlonitis v. United States, 2020 WL 1227164, at *5 (E.D.N.Y. Mar. 13, 2020)

(“Because the motor vehicle collision underlying this action occurred in New York,

New York tort law applies.” (quoting Hyacinthe v. United States, 2009 WL 4016518,

at *6 (E.D.N.Y. Nov. 19, 2009)). “Under New York law, . . . a plaintiff must establish

three elements to prevail on a negligence claim: (1) the existence of a duty on

defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff

as a result thereof.” Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166,

177 (2d Cir. 2013) (quoting Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.

2000)); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441

N.Y.S.2d 644 (N.Y. 1981). Plaintiff’s burden is a preponderance of the evidence. E.g.,

Polanco v. United States, 2020 WL 6504554, at *12 (S.D.N.Y. Nov. 5, 2020); Kane v.

United States, 189 F. Supp. 2d 40, 52 (S.D.N.Y. 2002) (Chin, J.) (citing 1B New York

Pattern Jury Instructions 2:275.1 (2000)).

Plaintiff moves for summary judgment (i) “on the issue of liability.” Pl. Reply

at 1 [DE 49]. Defendant cross-moves for summary judgment based on the issues of

(ii) damages and (iii) causation. Def. Cross-Mem. [DE 46-5]. The Court addresses

each in sequence.

I. Liability

New York courts have long recognized that “[a] rear-end collision with a

stopped or stopping vehicle creates a prima facie case of liability with respect to the

operator of the rearmost vehicle.” Filippazzo v. Santiago, 277 A.D.2d 419, 419, 716

N.Y.S.2d 710 (N.Y. App. Div., 2d Dep’t 2000); e.g., Hyacinthe, 2009 WL 4016518, at

*6; Mascitti v. Greene, 250 A.D.2d 821, 822, 673 N.Y.S.2d 206 (N.Y. App. Div., 2d

Dep’t 1998) (“[I]t is well established that a rear-end collision with a stopped vehicle

establishes a prima facie case of negligence on the part of the operator of the following

vehicle”). In these cases, a defendant bears the burden of “provid[ing] a non-negligent

explanation of the collision in order to overcome the inference of negligence and defeat

the motion for summary judgment.” Luizzi v. Pro Transp. Inc., 2009 WL 252076, at

*4 (E.D.N.Y. Feb. 2, 2009); Cajas-Romero v. Ward, 106 A.D.3d 850, 851, 965 N.Y.S.2d

559 (N.Y. App. Div., 2d Dep’t 2013). Accepted non-negligent explanations include

“mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on

a wet pavement, or any other reasonable cause.” Filippazzo, 277 A.D.2d at 419; see

Luizzi, 2009 WL 252076, at *4.

The parties agree that Defendant rear-ended Plaintiff as Plaintiff was slowing

down or stopped. E.g., Pl. 56.1 ¶ 5 (“As Plaintiff slowed her car down, Plaintiff was

struck full force from behind.” (internal quotation marks omitted)); Def. 56.1 ¶¶ 5, 7

(stating that “the front end of [Defendant’s] vehicle came into contact with the rear

end of Plaintiff’s vehicle” which “had stopped”); Police Accid. Rpt. (reciting the event

as: Plaintiff “slows” and is “rear-ended” by Defendant). Therefore, Plaintiff has

established a prima facie case for liability.

Though its Rule 56.1 Statement hints at non-negligent explanations for the

collision, e.g., Def. 56.1 ¶¶ 4, 6, Defendant does not contest liability. See Def. Opp. at

2–4. Instead, Defendant asserts “a showing of liability alone is not sufficient grounds

for summary judgment” and references Plaintiff’s inability to demonstrate damages

or causation. Id. at 3–4. But Plaintiff moves for summary judgment only as to

liability and not with respect to her entire claim – Defendant’s contention is

non-responsive. Plaintiff’s motion for summary judgment as to the issue of liability

is granted. E.g., Polonia v. Dunphy, 2012 WL 2376467, at *6 (S.D.N.Y. June 21, 2012)

(“The presumption of negligence still applies in this case and Dunphy does not

successfully rebut it with a non-negligent reason for the accident. Even taking

Dunphy’s story as true, he is still liable and thus summary judgment should be

granted for Plaintiff.”); Schmertzler v. Lease Plan U.S.A., Inc., 137 A.D.3d 1101, 1102,

27 N.Y.S.3d 648 (N.Y. App. Div., 2d Dep’t 2016); Barile v. Lazzarini, 222 A.D.2d 635,

636, 635 N.Y.S.2d 694 (N.Y. App. Div., 2d Dep’t 1995) (“If the operator cannot come

forward with any evidence to rebut the inference of negligence, the plaintiff may

properly be awarded judgment as a matter of law.”); Starace v. Inner Circle

Qonexions, Inc., 198 A.D.2d 493, 494, 604 N.Y.S.2d 179 (N.Y. App. Div., 2d Dep’t

1993) (“Since the appellants did not come forward with any evidence to rebut the

inference of negligence, we conclude that the trial court properly awarded the plaintiff

judgment as a matter of law on the issue of liability.”).

II. Damages

Both Plaintiff and Defendant assert that New York’s No-Fault statute applies

to the issue of damages. E.g., Morrone v. McJunkin, 1998 WL 872419, at *2 (S.D.N.Y.

Dec. 15, 1998). The Court agrees: Plaintiff, as the occupant of an insured vehicle in

New York, and Defendant, the United States, are “covered person[s]” under the

statute. N.Y. Ins. Law § 5102(j); Wirt v. United States, 732 Fed. App’x 32, 35 (2d Cir.

2018) (citing United States v. GEICO, 605 F.2d 669, 671 (2d Cir. 1979)); Canfield v.

Beach, 305 A.D.2d 440, 441, 761 N.Y.S.2d 71 (N.Y. App. Div., 2d Dep’t 2003); e.g.,

Polanco, 2020 WL 6504554, at *13 .

“New York’s ‘no-fault’ insurance laws place limits on any recovery by a person

involved in an automobile accident,” providing recovery only for (a) economic losses

beyond the “basic economic loss” threshold and (b) non-economic losses arising from

“serious injury.” N.Y. Ins. Law §§ 5102, 5104; Polanco, 2020 WL 6504554, at *12;

Avlonitis, 2020 WL 1227164, at *5 (internal quotation marks omitted). Whether a

plaintiff may recover either is “quintessentially an issue of damages, not liability.”

See Van Nostrand v. Froehlich, 44 A.D.3d 54, 62, 844 N.Y.S.2d 293 (N.Y. App. Div.,

2d Dep’t 2007).

A. Economic Loss

Basic economic losses are medical costs, “lost wages,” and “reasonable and

necessary expenses” totaling to $50,000.00 or less. N.Y. Ins. Law § 5102(a). New

York No-Fault Insurance Law denies a “right of recovery . . . for basic economic loss,”

id. § 5104, which means a plaintiff must “show[] that she has suffered more than . . .

$50,000[] in the form of medical costs and other expenses” to “recover any economic

damages.” Perez v. United States, 2019 WL 2336526, at *10 (S.D.N.Y. June 2, 2019).

If Plaintiff fails to do so, then Defendant is entitled to summary judgment barring

any such recovery. E.g., Mercado v. Lee, 2008 WL 4963985, at *6 (S.D.N.Y. Nov. 21,

2008); Diaz v. Lopresti, 57 A.D.3d 832, 833, 870 N.Y.S.2d 408 (N.Y. App. Div., 2d Dep’t

2008).

Defendant contends that Plaintiff suffered only non-compensable “basic

economic loss.” Def. Cross-Mem. at 18. In support, Defendant notes the absence of

any affirmative claim for lost wages, id. (citing the Complaint), and annexes

insurance documentation reflecting roughly $22,000.00 in medical expenses, id.

(citing Ex. 13 [DE 48-7] to Dickman Decl.).

Plaintiff’s opposition brief is silent on economic loss. See Pl. Opp. at 11–15.

Defendant is therefore entitled to summary judgment on this issue: Plaintiff may not

recover her economic losses. E.g., Williams v. Elzy, 2003 WL 22208349, at *3

(S.D.N.Y. Sept. 23, 2003) (“Plaintiff has not submitted any evidence to indicate that

she is seeking damages for economic loss greater than ‘basic’ economic loss . . . . Thus,

the damages sought by plaintiff are exclusively for ‘non-economic’ loss.”); Watford v.

Boolukos, 5 A.D.3d 475, 476, 772 N.Y.S.2d 566 (N.Y. App. Div., 2d Dep’t 2004)

(granting defendant summary judgment on economic loss because “plaintiff failed to

plead a claim for economic loss in the complaint . . . [and] failed to produce any

evidence in admissible form which supports such a claim.”).

B. Serious Injury

New York No-Fault law permits recovery for non-economic losses—e.g., “pain

and suffering”—if a plaintiff suffers “serious injury.” N.Y. Ins. Law §§ 5102(c), 5104.

“Serious injury” is defined, in relevant part, as:

a personal injury which results in . . . [i] permanent loss of use of a body

organ, member, function or system; [ii] permanent consequential

limitation of use of a body organ or member; [iii] significant limitation

of use of a body function or system; [iv] 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).

As the summary judgment movant, Defendant “must establish a prima facie

case that [P]laintiff did not sustain a ‘serious injury.’” Yong Qin Luo v. Mikel, 625

F.3d 772, 777 (2d Cir. 2010). Should Defendant do so, Plaintiff must then “establish

a prima facie case that [she] sustained a serious injury. Id. Plaintiff meets her

burden by offering “objective proof . . . ; subjective complaints alone are not

sufficient.” Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350, 774 N.E.2d 1197,

746 N.Y.S.2d 865 (N.Y. 2002). “If it can be said, as a matter of law, that plaintiff

suffered no serious injury within the meaning of [N.Y. Ins. Law § 5102(d)], then

plaintiff has no claim to assert and there is nothing for the jury to decide.” Licari v.

Elliott, 57 N.Y.2d 230, 238, 441 N.E.2d 1088, 455 N.Y.S.2d 570 (N.Y. 1982).3

While Plaintiff asserts the collision caused back and neck injuries, she does not

argue either constitutes “serious injury.” See Pl. Opp. 11–15. Even so, when a

“plaintiff establishe[s] that at least some of [her] injuries meet the ‘No Fault’

threshold, it is unnecessary to address whether [her] proof with respect to other

injuries [she] allegedly sustained would have been sufficient to withstand defendants’

motion for summary judgment.” Linton v. Nawaz, 14 N.Y.3d 821, 822, 926 N.E.2d

593, 900 N.Y.S.2d 239 (Mem) (N.Y. 2010); Garcia v. Basdeo, 2005 WL 2002450, at *6

n.11 (E.D.N.Y. Aug. 19, 2005) (Mann, Mag. J.) (“The defense contends that plaintiff

has not satisfied the ‘serious injury’ threshold ‘in regard to the injuries claimed for

his neck and back.’ However, where the plaintiff has established a serious injury—

here, a torn rotator cuff—he may also recover for additional injuries that would not

independently satisfy the serious injury threshold.” (internal citations omitted)).

Accordingly, and because Plaintiff focuses her “serious injury” argument on her right

shoulder, the analysis below omits reference to her neck and back conditions.

i. Permanent Loss of Use

Plaintiff’s injuries do not fit within the “[p]ermanent loss of use of a body organ,

member, function or system” category of “serious injury” because she does not have

3 “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.” Kang v. Romeo, 2020 WL 4738947, at *8 n.17 (E.D.N.Y. Aug.

14, 2020).

“a total loss.” Oberly v. Bangs Ambulance Inc., 96 N.Y.2d 295, 299, 751 N.E.2d 457,

727 N.Y.S.2d 378 (N.Y. 2001); Davis v. Cottrell, 101 A.D.3d 1300, 1301, 956 N.Y.S.2d

248 (N.Y. App. Div., 3d Dep’t 2012) (“[T]he record [must] include proof that plaintiff

has lost the total use of any body organ or system.”). New York law considers “partial”

injuries, even if permanent, insufficient under this category. See Oberly, 96 N.Y.2d

at 299 (“Had the Legislature considered partial losses already covered under

‘permanent loss of use,’ there would have been no need to enact the [second and third

categories of serious injuries].”); e.g., Davis, 101 A.D.3d at 1301 (“Because the record

does not include proof that plaintiff has lost the total use of any body organ or system,

and even her treating physician . . . diagnosed her with a ‘permanent partial

disability,’ plaintiff cannot proceed under the permanent loss of use category.”).

Plaintiff’s doctor diagnosed her with a “permanent partial disability of her right

shoulder,” which is not enough. Nov. 9, 2020 Segreto Rpt. (emphasis added).

ii. Permanent Consequential Limitation & Significant

Limitation

The second and third “serious injury” categories, “permanent consequential

limitation” and “significant limitation,” overlap and are often considered together.

Avlonitis, 2020 WL 1227164, at *6 (“With the exception that the plaintiff prove

permanence to satisfy the ‘consequential limitation’ definition, ‘significant limitation’

is essentially identical.” (quoting Williams v. United States, 2014 WL 11460892, at *8

(N.D.N.Y. Jan. 28, 2014)); see Lopez v. Senatore, 65 N.Y.2d 1017, 1019–20, 484 N.E.2d

130, 494 N.Y.S.2d 101 (N.Y. 1985). But, nevertheless, a “permanent consequential

limitation of use of a body organ or member” requires, inter alia, “competent medical

evidence that [a plaintiff’s] injuries are permanent.” Ventra v. United States, 121 F.

Supp. 2d 326, 333 (S.D.N.Y. 2000). And “significant limitation of use of a body

function or system” asks for “more than . . . a minor, mild or slight limitation of use.”

Licari, 57 N.Y.2d at 236. “Whether a limitation of use or function is ‘significant’ or

‘consequential’ (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.” Dufel v. Green, 84 N.Y.2d

795, 798, 647 N.E.2d 105, 622 N.Y.S.2d 900 (N.Y. 1995) (internal citations omitted).

Defendant carries its burden of showing Plaintiff’s failure to sustain a “serious

injury” by citing the sworn Independent Medical Examination report of its expert Dr.

Mark G. Creighton, M.D., “unsworn reports by [P]laintiff's physicians,” and Plaintiff’s

deposition testimony. Def. Cross-Mem. at 22–24. Dr. Creighton opined that

Plaintiff’s symptoms were consistent with “underlying,” “preexisting,” and

“degenerative” conditions unrelated “in any way to her” rear-end collision. Ex. 15 to

Dickman Decl. This showing constitutes “a prima facie case that [Plaintiff] suffered

no permanent and consequential or significant limitation of the use of her body.” Bass

v. Hout, 2019 WL 6527944, at *5 (S.D.N.Y. Dec. 4, 2019); see Ciappetta v. Snyder,

2021 WL 536131, at *9 (E.D.N.Y. Jan. 22, 2021), report and recommendation adopted,

2021 WL 512462 (E.D.N.Y. Feb. 11, 2021) (finding defendants’ expert report

“sufficient to satisfy [d]efendants’ prima facia case the [p]laintiff has not suffered a

significant limitation which would qualify as serious injury under the New York” law,

thus shifting the burden “to Plaintiff to establish, through objective evidence, that

[she] has suffered a significant limitation); see also Yong Qin Luo, 625 F.3d at 777

(finding defendants’ expert reports sufficient).

Plaintiff, in turn, successfully bears her burden and creates a genuine dispute

of material fact as to whether she suffered “serious injury” by virtue of a “significant

limitation.” Her treating physician, Dr. Segreto, opined that Plaintiff suffered a

“permanent partial disability” to her right shoulder, resulting in decreased “range of

motion, strength, and stability,” which “is clearly causally related to the motor vehicle

accident of November 16, 2017.” Nov. 9, 2020 Segreto Rpt.; Yong Qin Luo, 625 F.3d

at 777. Dr. Segreto’s observations derive from Plaintiff’s “regular” office visits, where

“at every visit” they discussed her right shoulder and explored “the possibility of

surgery”; he also administered “cortisone and lidocaine injections.” Id. His opinion

is based on “objective proof of injury,” including right shoulder MRI results showing

“a tear in the posterior glenoid labrum supraspinatus” – i.e., “a labrum tear and

partial rotator cuff tears.” Nov. 9, 2020 Segreto Rpt. Whereas Defendant’s expert

Dr. Creighton wrote that Plaintiff’s shoulder MRI “showed rotator cuff tendonopathy

but no tear,” Ex. 15 to Dickman Decl., Dr. Segreto wrote that “the MRI revealed a

[glenoid labrum] tear,” Nov. 9, 2020 Segreto Rpt., a finding corroborated by the MRI

Report’s “Impression” section, Ex. C to Pl. Resp. 56.1 (“intrasubstance tear posterior

glenoid labrum”).

As a whole, Dr. Segreto’s opinion reflects a “qualitative assessment of

[P]laintiff's condition” built upon “an objective basis” that compares her “limitations

to the normal function, purpose, and use of the” shoulder. Yong Qin Luo, 625 F.3d at

777 (internal quotation marks omitted) (quoting Toure, 98 N.Y.2d at 350). Viewing

the evidence in the light most favorable to the non-movant, as the Court must do on

summary judgment, Plaintiff has successfully rebutted Defendant’s prima facie case.

Indeed, the New York Court of Appeals in Toure held that an analogous

medical opinion, “supported by objective medical evidence” in the form of MRI reports,

was “sufficient to defeat defendants’ motion for summary judgment.” 98 N.Y.2d at

353. In the same vein as Toure, several courts have held a doctor’s qualitative

assessment, supported by MRI results, as to the “significant limitation” imposed by

a plaintiff’s partial rotator cuff tear caused by a car accident, successfully raises a

genuine question of material fact on the issue of “serious injury.” E.g., Yong Qin Luo,

625 F.3d at 778 (holding “a tear in the right shoulder” with “subjective evidence as to

the impact of the injury on her functioning” sufficed); Bass, 2019 WL 6527944, at *2,

*5 (“Cohen documented muscle spasms and loss of feeling in Bass’ arm, and the MRI,

though disputed, suggests the possibility of a tear, findings that support a ruling in

favor of a serious injury.”); Gil v. W. Express, Inc., 2017 WL 4129634, at *11 (S.D.N.Y.

Sept. 14, 2017) (McCarthy, Mag. J.) (citing MRI results showing “extensive partial

rotator cuff tear”); Acosta v. Ramos, 144 A.D.3d 441, 442, 40 N.Y.S.3d 116 (N.Y. App.

Div., 1st Dep’t 2016) (“[P]laintiff’s orthopedic surgeon . . . opined, based on his

examination of plaintiff, his observations during surgery, his review of the MRI, and

plaintiff’s lack of history of previous shoulder injuries, that the shoulder tears were

causally related to the accident.”); Hong v. Chen, 55 Misc. 3d 1203(A), 55 N.Y.S.3d

692 (N.Y. Sup. Ct., Queens Cnty. 2017).

Defendant asserts Dr. Segreto’s “unsworn” December 12, 2019 report is

inadmissible and thus should not be considered on summary judgment. Def. Cross-

Mem. at 22. Yet Dr. Segreto’s November 9, 2020 report offers the same opinion and

is sworn—his medical opinion, therefore, is properly considered by the Court. Nov.

9, 2020 Segreto Rpt. (“I, Frank S. Segreto, M.D., hereby affirm the above to be true

under the penalty of perjury.”).4

Therefore, although Defendant meets its prima facie burden to show Plaintiff

did not suffer “serious injury,” Plaintiff’s proof in rebuttal raises a genuine question

of material fact. See Kim v. Stewart, 2021 WL 1105564, at *7 (S.D.N.Y. Mar. 23,

2021) (Cave, Mag. J.) (“‘[C]ontradicting medical affirmations . . . [submitted] in

connection with this motion merely establishes a battle of the experts’ [which]

underscores the conclusion that [plaintiff] has presented sufficient evidence to raise

a genuine issue of material fact.” (internal quotation marks and alterations omitted)

(quoting Klein v. Goldfarb, 2004 WL 551219, at *1 (S.D.N.Y. Mar. 22, 2004))). This

issue is best left for a jury.

iii. 90/180 Category

Section 5102(d)’s final category—the “90/180 category,” Toure, 98 N.Y.2d at

357—calls for injury or impairment to “prevent[] the injured person from performing

4 Dr. Segreto’s November 9, 2020 report is dated subsequent to Defendant’s

cross-motion opening brief, which explains why Defendant does not reference it.

Compare Def. Cross-Mem. [DE 46] (filed Oct. 16, 2020), with Ex. D to Pl. Resp. 56.1

[DE 50-4] (dated Nov. 9, 2020). That said, Defendant never submitted a Reply brief

despite being granted an extension to do so. See Mot. for Extension of Time [DE 51]

(dated Nov. 20, 2020); Order dated November 23, 2020.

substantially all of” the person’s usual and customary daily activities” for at least 90

days during the first 180 days immediately after the accident. N.Y. Ins. Law

§ 5102(d). “[T]he words ‘substantially all’ should be construed to mean that the

person has been curtailed from performing [her] usual activities to a great extent

rather than some slight curtailment.” Licari, 57 N.Y.2d at 236.

Plaintiff’s injuries do not fit within this category. Plaintiff missed no work due

to her injuries, Tr. of Dep. of Annmarie Comba at 91:2–5, Ex. D. [DE 39-7] to DeMaio

Aff. (“Q: Did you miss any time at your job based on injuries that you claim as a result

of this accident? A: No.”), and “courts have generally found a defendant’s initial

burden [in the 90/180 category] 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 v. Pavetek Corp., 2017 WL 1155764, at *26 (E.D.N.Y. Mar.

27, 2017) (citing cases). Plaintiff points to no evidence suggesting she was prevented

from performing any daily activities; her argument to this end is an oblique reference

to “altered daily activities.” Pl. Opp. at 13–14 (emphasis added). And it is not clear

to which “activities” Plaintiff alludes: “daily living, work and sleep” are far too

nebulous to pass muster on summary judgment. See id.

* * *

As to damages, Defendant shall be granted summary judgment on the issue of

“economic loss.” But for “non-economic loss,” Plaintiff has raised a genuine question

of material fact as to whether her right shoulder condition reflects “serious injury”

due to a “permanent consequential limitation” or “significant limitation.”

III. Causation

As a final hurdle, Plaintiff’s “serious injur[ies]” must be “proximately caused

by the accident at issue.” Carter v. Full Service, Inc., 29 A.D.3d 342, 344, 815

N.Y.S.2d 41 (N.Y. App. Div., 1st Dep’t 2006). A defendant can win summary

judgment on this issue by showing “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.” Pommells v.

Perez, 4 N.Y.3d 566, 572, 830 N.E.2d 278, 797 N.Y.S.2d 380 (N.Y. 2005). “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 judgment. Arenes v.

Mercedes Benz Credit Corp., 2006 WL 1517756, at *8 (E.D.N.Y. June 1, 2006) (citing

Pommells, 4 N.Y.3d at 580); see Evans v. United States, 978 F. Supp. 2d 148, 164

(E.D.N.Y. 2013).

At the outset, the Court notes that both Plaintiff and Defendant’s doctors rely

on the same evidence to reach opposite conclusions on the cause of Plaintiff’s

condition. Each relies specifically on the MRI results and his in-person assessment

of Plaintiff’s right shoulder. Compare Ex. 15 to Dickman Decl., with Nov. 9, 2020

Segreto Rpt. The MRI report itself says nothing about the cause—e.g., motor vehicle

accident or degeneration—of Plaintiff’s shoulder injury. See Ex. C. to Pl. Resp. 56.1.

In his sworn report, Defendant’s expert Dr. Creighton opined that Plaintiff’s

condition “is more consistent with a chronic pre-existing condition” and that the

collision was not “related in any way to her right shoulder symptoms.” Ex. 15 to

Dickman Decl. New York courts have recognized a defense expert’s conclusions to

that end carry the defense’s burden on causation. E.g., Kang v. Romeo, 2020 WL

4738947, at *25 (E.D.N.Y. Aug. 14, 2020); Rhone v. United States, 2007 WL 3340836,

at *7–8 (S.D.N.Y. Nov. 9, 2007); Arenes, 2006 WL 1517756, at *8; Moon v. Some, 189

A.D.3d 628, 629, 139 N.Y.S.3d 24 (N.Y. App. Div., 1st Dep’t 2020); Montgomery v.

Pena, 19 A.D.3d 288, 289, 798 N.Y.S.2d 17 (N.Y. App. Div., 1st Dep’t 2005); Shinn v.

Catanzaro, 1 A.D.3d 195, 197, 767 N.Y.S.2d 88 (N.Y. App. Div., 1st Dep’t 2003).

Dr. Segreto states, by contrast—and based on the same objective evidence

considered by Dr. Creighton as well as a longer treatment history with Plaintiff—

that her “right shoulder injury is clearly causally related to the motor vehicle

accident.” Nov. 9, 2020 Segreto Rpt. While he does not specifically address the

subject of “degenerative” or pre-existing” condition, Dr. Segreto described Plaintiff as

“a right handed individual with no prior problems with the right shoulder,” whose

symptoms first manifested following the collision at issue – evidence countering

Defendant’s theory of causation. Id. Additionally, “contemporaneous findings of

injury are highly relevant to causation,” Crawford-Reese v. Woodard, 95 A.D.3d 1418,

1420, 944 N.Y.S.2d 333 (3d Dep’t 2012) (citing Perl v. Meher, 18 N.Y.3d 208, 218, 960

N.E.2d 424, 936 N.Y.S.2d 655 (N.Y. 2011)), and Dr. Segreto averred in his sworn

report that he made his first diagnosis less than three weeks after Plaintiff’s collision

and continued to see her at two-week intervals. Nov. 9, 2020 Segreto Rpt.

The summary judgment question before the Court parallels the one addressed

by New York Appellate Division, First Department in Linton v. Nawaz, 62 A.D.3d

434, 879 N.Y.S.2d 82 (N.Y. App. Div., 1st Dep’t 2009), aff’d, 14 N.Y.3d 821, 926 N.E.2d

593, 900 N.Y.S.2d 239 (Mem) (N.Y. 2010). The Linton Court denied defendants

summary judgment, finding:

Defendants’ sole competent evidence in favor of summary judgment was

a doctor’s opinion that plaintiff’s injuries pre-existed the accident.

Plaintiff submitted the affirmation of a treating physician, based on a

physical examination performed within days of the accident, opining

that the injuries were caused by the accident. There is no basis on this

record to afford more weight to defendants’ expert’s opinion and there

are no “magic words” which plaintiff’s expert was required to utter to

create an issue of fact. If anything, plaintiff’s expert’s opinion is entitled

to more weight. Moreover, that opinion constituted an unmistakable

rejection of defendants' expert’s theory.

Id. at 443. Accordingly, this Court will not grant Defendant summary judgment by

calling the non-movant Plaintiff’s expert’s opinion on causation “conclusory,” where

Defendant’s own expert offered an equally “conclusory” opinion upon consideration of

the same objective evidence.5 Cf. Baytsayeva v. Shapiro, 868 F. Supp. 2d 6, 26

(E.D.N.Y. 2012) (“[T]he New York Court of Appeals has already held that a

5 The Court questions the persuasiveness of Dr. Creighton’s general assertion

that “[a] rear end collision of less than 10 m.p.h. by a significantly smaller and lighter

vehicle is highly unlikely to cause the rotator cuff tendonopathy, especially in a

restrained driver.” Ex. 15 to Dickman Decl. This generalization seems to be within

a biomechanical engineer’s wheelhouse, not a medical doctor’s. Morgan v. Girgis,

2008 WL 2115250, at *5 (S.D.N.Y. May 16, 2008) (citing cases recognizing “a

biomechanical engineer is qualified to offer testimony regarding the forces generated

by certain accidents and the likely effects of such forces on the human body”). Even

if considered, however, it does not alter the Court’s conclusion.

defendant’s allegations of a pre-existing condition based solely upon the defendant's

radiologist's ‘conclusory notation’ of a degenerative condition following review of an

MRI and nothing more is ‘itself insufficient to establish that plaintiff's pain might be

chronic and unrelated to the accident.’” (quoting Pommells, 4 N.Y.3d at 577–79));

Burzynski v. United States, 2016 WL 6298513, at *7 (W.D.N.Y. Oct. 27, 2016)

(denying summary judgment where “[d]efendant’s expert opines that any injury to

Plaintiff’s back is a result of degenerative changes unrelated to the collision;

Plaintiff’s treating physician opines the opposite”).

CONCLUSION

For the reasons discussed above, Plaintiff’s motion is GRANTED as to liability.

Defendant’s motion is GRANTED to the extent that Plaintiff may not recover

“economic loss” but DENIED as to the issues of “non-economic loss” and causation.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

April 23, 2021 Denis R. Hurley

United States District Judge