UNITED STATES DISTRICT COURT | DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED | ts sess sok | DOC #:

. Plaintiff, —_—_—_—_—_

-against- 24-cv-357 (LAK) (RFT)

TEX-Q EXPRESS INC. et al., Defendants. eK

MEMORANDUM AND ORDER

LEwIs A. KAPLAN, District Judge. This action arises out of a motor vehicle accident involving plaintiff Fadil Yacoubou and a truck driven by defendant John Doe and owned by defendant Tex-Q Express Inc. (“Tex-Q”). Tex-Q moved for summary judgment on the ground that plaintiff did not sustain a serious injury within the meaning of New York Insurance Law § 5102(d).! In a thorough report and recommendation (“R&R”),’ Magistrate Judge Robin Tarnofsky recommended that the Court grant the motion for summary judgment and dismiss without prejudice the claims against John Doe. The Court has reviewed the R&R and the parties’ submissions with care. It is firmly of the view that the R&R’s conclusions are correct in all material respects. Yacoubou argues that the R&R overlooked that an injury resulting in “[s]ignificant Dkt 31. Dkt 42.

limitation of use of a body function or system” is a serious injury.’ Not so. The R&R correctly concluded that (1) Tex-Q “made a prima facie showing that Yacoubou’s injuries did not cause . .

. significant limitation of use,” and (2) Yacoubou failed to rebut this prima facie showing.” Next, Yacoubou argues that there is a genuine issue of material fact as to whether his injury resulted in a significant limitation of use of a bodily function. Defendant’s independent medical expert (“IME”) found that Yacoubou had a normal range of motion in all body parts, except for a 17 percent decrease in range of motion in thoraco-lumbar spine flexion.° The R&R concluded that this decrease does not satisfy the significant limitation standard under New York law.” In support, the R&R cited Cooper v. Dunn,* in which the court held that an 18 percent decrease in lumbar spine range of motion and a 10 to 20 percent limitation in range of motion in the back were legally insignificant.’ Yacoubou argues that Cooper is distinguishable because the experts there disagreed about the extent of the plaintiff's injuries. But that distinction is irrelevant —. the court held that, accepting the plaintiff's experts findings as true, they did not show that the plaintiff suffered a

(d). Dkt 42 at 15. id, at 21-23.

. ; Td. at 23. 99-CV-6903 (ILG),

(E.D.N.Y. Jan. 2, 2001).

at *5—7.

serious injury. Moreover, Cooper cites several New York state court cases holding that a partial restriction of motion is not significant as a matter of law.'° Yacoubou does not cite any authority to the contrary, Finally, Yacoubou argues that he has established causation of his injuries. This argument rehashes that made before the magistrate that was rejected in the R&R." In any event, even if Yacoubou had established a genuine issue of material fact as to causation, his claims still would fail because he did not suffer a serious injury. Accordingly, the Court adopts the magistrate’s report and recommendation (Dkt 42) in full. Defendant Tex-Q Express Inc.’s motion for summary judgment (Dkt 31) is granted and the claims against John Doe are dismissed without prejudice. The clerk shall close the case.

SO ORDERED. Dated: September 3, 2025 yy /

Lewis A.Aaplan ‘ United States District Judge

10

at *6 (citing cases); see, e.g., Waldman vy. Chang, 573 NVY.S.2d 79 (2d Dep’t 1991) (holding as a matter of law that plaintiff's 15% limitation in range of motion of cervical spine and back was not significant). It Dkt 42 at 25-27.