Grondecki v. Axiom Management, Inc.
Grondecki v. Axiom Management, Inc.
Opinion of the Court
MEMORANDUM
Plaintiffs Antoni and Irena Cyrkler
DISCUSSION
I. Choice of Law
I must first decide whether the substantive law of New York or Pennsylvania governs this action. Defendant argues that New York law applies in this case. Plaintiffs assert that Pennsylvania law should apply to their claims. To answer a choice of law question, federal courts sitting in diversity are required to apply the choice of law rules of the forum state — in this case, Pennsylvania. See Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Pennsylvania law begins the inquiry with a determination of whether the laws of the competing states actually differ. Wilson v. Transp. Ins. Co., 889 A.2d 563, 571 (Pa.Super.Ct. 2005).
I find that there is an actual conflict between the relevant laws of New York and Pennsylvania. Under the New York State Insurance Law, NY Insurance Law § 5101, et seq., which is commonly known as New York’s No-Fault Insurance Law, no-fault insurers reimburse covered-persons for up to $50,000 in “basic economic loss” without proof of fault of the other driver. NY Insurance Law § 5102(a). A right of recovery for non-economic loss under New York law exists only “in the case of serious injury.”
A four-wheel motor vehicle.. .which is insured by a natural person and 1) is a passenger car neither used as a public or livery conveyance nor rented to others; or 2) has a gross weight not exceeding 9,000 pounds and is not principally used for commercial purposes other than farming.
75 Pa. C.S. § 1702. Plaintiffs argue that “[djefendant’s bus does not meet this definition. Among other reasons, it was insured by a corporation — not a natural person, it had a gross weight of 26,000 pounds, and it was principally used for commercial purposes.”
Even if' the MVFRL’s limited tort option does not apply to this case, there is an actual conflict between the New York No-Fáult law and Pennsylvania law, because unlike in New York, Pennsylvania law does not provide for’automatic coverage without proof of fault for basic economic loss up to a threshold amount. Accordingly, an “interest analysis” must be performed: consideration of the policies of all interested states and then — based on the result of the inquiry — characterization of the conflict as a true conflict, falsé conflict, or unprovided-for conflict. Budget Rent-A-Car Sys., Inc. v. Chappell, 407
New York enacted its statutory no-fault insurance regime to “ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence [and] to reduce the burden o,n the courts[.]” Med. Soc’y of State of N.Y. v. Serio, 100 N.Y.2d 854, 768 N.Y.S.2d 423, 800 N.E.2d 728, 731 (2003). Further, the New York Court of Appeals has recognized that the legislature intended the No-Fault law “to weed out frivolous claims and limit recovery to significant injuries.” Dufel v. Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900, 647 N.E.2d 105, 107 (1995). In Pennsylvania, “the MVFRL was enacted to control the costs of automobile insurance, and also to address issues caused by uninsured and underinsured motorists.” Kidd v. State Farm Mut. Auto. Ins. Co., No. 13-2625, 2015 WL 9479997, at *2 (M.D.Pa. Dec. 29, 2015), citing Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629, 631 (1991). The MVFRL was meant to “provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” Sherwood v. Bankers Standard Ins., 424 Pa.Super, 13, 621 A.2d 1015, 1017 (1993), rev’d on other grounds, 538 Pa. 397, 648 A.2d 1171 (1994).
Defendant contends that in this case, there is a false conflict and the New York No-Fault law applies to plaintiffs claims “because Pennsylvania has no interest in utilizing its MVFRL to decide this action.” Dkt. No. 45-1 at ECF p. 9; see also Dkt. No. 49 at ECF p. 3. Defendant argues that “New York’s [governmental interest would be severely impaired if.. .plaintiffs were able to maintain this action without proving a serious injury under New York Law” because “New York has a strong interest in ensuring out-of-staters are not fraudulently taking advantage of its regulatory regime by first taking advantage of its very generous first party.. .benefits and the[n] pursuing recovery in a third party action seeking payment for pain and suffering” under'a different state’s standard for what constitutes a serious injury. Dkt. No. 45-1 at ECF p. 9. Defendant notes that although plaintiffs contend that Pennsylvania law should apply to their claims, “[p]laintiffs elected to receive substantial benefits under New York’s no-fault statute.” Dkt. No. 49 at ECF p. 3.
[t]he incident occurred in New York. The place of injury was New York, The place of conduct was New York. The traffic laws that applied were. New York’s. The liability insurance trigger was in New York, New York no-fault damages were paid. Plaintiffs received treatment for their injuries in both New York and New Jersey. Plaintiffs began their trip in New Jersey and travelled to New York. New York emergency personnel assisted Plaintiffs’ after the crash. Plaintiffs[ ] were not domiciled in Pennsylvania, they lived in New Jersey.
Id. at ECF p. 3-4.
Plaintiffs argue that Pennsylvania law should apply because Pennsylvania “is the only jurisdiction whose contacts are significant and directly related to the issue of the [defendant's liability to its passengers for damages” and claim that “New York has no connection to the parties or the issues, other than being the fortuitous location where the crash and the Plaintiffs’ injuries happened to occur.” Dkt, No. 47 at ECF p. 17 (emphasis added). Plaintiffs assert that “Pennsylvania has the strongest contacts with the parties and the strongest interest [in] applying its laws to the issues at hand.” Id. at ECF p. 18. Plaintiffs note that defendant’s principal place of business is Pennsylvania, the bus driver was licensed in Pennsylvania, the bus had Pennsylvania license plates and was insured under a policy issued in Pennsylvania, Id. at ECF p. 12-13. Plaintiffs-argue that Pennsylvania has an “interest in ensuring that bus passengers are fully compensated for injuries and losses they sustain in crashes on buses that are registered, licensed and insured under Pennsylvania’s laws.” Id. at ECF'p. 15. Plaintiffs also argue that defendant cites no “case in support of the proposition that receipt of first-party benefits under New York’s no fault law necessitates the application of New York law in a subsequent tort action” and that “if the New York legislature intended for receipt of first party benefits to serve as a choice of law electioii, it could have included provisions to that effect in New York’s statute,” but it did not. Id. at ECF p. 17. Finally, plaintiffs argue that “Pennsylvania’s interests would be significantly impaired if New York’s No-Fault law applied to the case and defendant was able to escape liability if Plaintiffs injuries are not deemed ‘serious’ under the New York no-fault standard.” Id. at ECF p. 16.
Assuming arguendo that the conflict here is a false conflict, it is New York’s interests which would be impaired by the application .of Pennsylvania law. “New York’s serious injury threshold requirement (to reduce the number of litigated automobile personal injury cases and to reduce no-fault insurance premiums) would be eroded if [Pennsylvania] law were applied” in.this case. Kranzler v. Austin, 189 Misc.2d 369, 732 N.Y.S.2d 328, 329 (N.Y.App.Div. 2001) (declining to choose the New Jersey law over the law of New York where New Jersey law “allows- the purchase of a no threshold option, for an increased premium, whereby the insured has no limitations on lawsuits and can sue for the .noneconomic loss of pain and suffering for any injury, no matter how minor”). And even if there is a true conflict in
II. Summary Judgment
A. Standard of Review
Summary judgment will be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the burden of demonstrating 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); see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. If the movant sustains its burden, the nonmovant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Id. A fact is “material” if it might affect the outcome of the case under governing law. Id.
To establish “that a fact cannot be or is genuinely disputed,” a party must:
(A) cit[e] 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; or
*355 (B) show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The adverse party must raise “more than a mere scintilla of evidence in its favor” in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). The “existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against” the movant. Ely v. Hall’s Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted).
B. Serious Injury
Defendant argues that plaintiffs cannot sustain their claims for damages because their injuries do not qualify as “serious” under New York law. Plaintiff disagrees. Because I have decided that New York law applies to plaintiffs’ claims, defendant’s burden on summary judgment is to “submit admissible evidence demonstrating that a plaintiff did not sustain a serious injury” within the meaning of § 5102(d) of the New York Insurance Law. “The defendant may satisfy this initial burden with unsworn reports by the plaintiff’s physicians or with sworn affidavits or affirmations by the defendant’s own retained physicians.” Thomas v. O’Brien, 08-3250, 2010 WL 785999, at *7 (E.D.N.Y. Feb. 26, 2010).
Relevant here are the following three types of serious injury under the New York No-Fault law:
(1) permanent consequential limitation of use of a body organ or member;
(2) significant limitation of use of a body function or system; and
(3)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).
If defendant sets forth sufficient evidence to show that plaintiffs did not sustain a serious injury within the meaning of the statute, the burden shifts to plaintiffs to submit “competent medical evidence based upon objective medical findings and diagnostic tests to support [their] claims.” Fitzmaurice v. Chase, 288 A.D.2d 651, 732 N.Y.S.2d 690, 692-93 (2001) (citation and quotation omitted). “Plaintiff[s] must... offer admissible evidence in the form of sworn affidavits or reports by physicians, or sworn medical test records, such as MRI reports.” Rivera v. United States, 10-5767, 2012 WL 3132667, at *10 (S.D.N.Y. July 31, 2012). “[UJnsworn letters or medical reports from physicians submitted by a plaintiff in opposition to a summary judgment motion are inadmissible evidence that may not be considered.” Evans v. U.S., 978 F.Supp.2d 148, 163 (E.D.N.Y. 2013).
With respect to the first type of injury, it is not enough that an injury is permanent, it must also be consequential. Kordana v. Pomellito, 121 A.D.2d 783, 503 N.Y.S.2d 198, 200 (1986) (“In order to establish a permanent consequential limitation of use of a body organ or member, it is incumbent upon plaintiff to present competent evidence raising triable issues as to whether her injury was both permanent and consequential.”) (emphasis added); see also Yeruham v. United States, No. 12-6389, 2015 WL 1966457, at *6 (E.D.N.Y.
“Permanent injuries already in existence at the time of the.. .accident.will not qualify” as serious injuries. Jones v. United States, 408 F.Supp.2d 107, 117 (E.D.N.Y. 2006) (collecting cases). However, “a strain that aggravates a preexisting degenerative condition can qualify as a serious injury.” Sanchez v. Travelers Cos., Inc., 658 F.Supp.2d 499, 511 (W.D.N.Y. 2009). ‘“[S]ummary dismissal of the complaint may be appropriate’ where defendant, has presented persuasive evidence of pre-existing conditions, indicating a lack of a causal connection, and the plaintiff has failed to address the defendant’s causation argument.” Alvarez v. E. Penn Mfg. Co., No. 10-09541, 2012 WL 4094828, at *9 (S.D.N.Y. Sept. 17, 2012), quoting Pom-mells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278, 281, 287 (2005) (emphasis omitted). Also relevant here, “[p]roof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury.” Pommells, 797 N.Y.S.2d 380, 830 N.E.2d at 282; see also Kearse v. New York City Transit Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281, 285 (2005) (“the mere existence of a bulging or herniated 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 disc injury and its duration”).
For the reasons that follow I find that plaintiffs have not met their burden under New York law to rebut defendant’s showing that they did not sustain serious injuries as a result of the bus accident. Thus I will grant defendant’s motion for summary judgment.
a. Physical Injuries: Antoni Cyrkler
Mr. Cyrkler claims that he injured his back and left leg in the bus accident. See Dkt. No. 45-3 at ECF p. 4. Defendant asserts that Mr. Cyrkler, “a 58 year-old laborer who has painted for most of his adult life,” has a history of pré-existing back conditions including degenerative disc disease. Dkt. No. 45-1 at ECF p.-ll. Defendant argues that “Mr. Cyrkler’s degenerative disc disease diagnosis undercuts his serious injury argument.” Id. at ECF p. Í3. Plaintiff contends that none of the injuries Mr. Cyrkler sustained in the crash were conditions for which he had received prior medical attention. Dkt. No. 47 at ECF p. 3.
After the accident, on August 8,-2011, Mr. Cyrkler was seen by Dr. Bozena Bit-ner for the chief complaint of “[l]ow back pain after bps accident.” Dkt. No. 48-2 at ECF p. 26. Mr. Cyrkler complained of “Mow back pain[,, s]harp pain in lumbar area, has been gradually getting worse.” Id. Upon examination, however, Mr. Cyrk-ler exhibited “normal sacroiliac joint mobility bilaterally.... [Njormal curvature of spine, mild pelvic obliquity_[N]o vertebral spine tenderness, no paraspinal tenderness, no sacroiliac joint tenderness.” Id. Mr. Cyrkler was referred for an MRI and instructed to apply a “heating pad to affected areas 2 to 3 times a day.” Jd, at ECF p. 27.
On August 19, 2011, Mr. Cyrkler underwent an MRI. As reported by The Radiology Center, Mr. Cyrkler had a clinical history of “progressive low back pain,” and the MRI showed “moderate disc degeneration with loss of disc signal and disc height at L4-5. There is broad báse disc protrusion reducing canal diameter narrowing both neural foramina and clinical correlation of both L4 nerve roots, especially on the left,” additionally; “at L5-S1 there is disc degeneration with broad disc protrusion and marginal osteophytosis resulting in right greater than left foraminal narrowing and clinical correlation advised regarding the status of -both L5 nerve roots especially on the right.” Dkt. No. 45-3 at ECF p. 11; Dkt. No. 48-2 at ECF p. 30. Also, the MRI showed “disc degeneration with moderate diffuse broad base disc protrusion and left greater than right neural foraminal narrowing at L4-5” and “[d]isc degeneration with broad disc protrusion and marginal osteophytosis with right greater than left neural foraminal narrowing at L5-S1” Dkt. No. 48-2 at ECF p. 29. There was “[n]o evidence of fracture/dislocation, marrow replacing process or intras-pinal/paraspinous mass.” Id. Considering x-rays of Mr! Cyrkler’s left leg, the radiologist found “no acute evidence of acute fracture or significant focal osseous lesion,” rather, the x-ray showed a “short segment smooth periosteal reaction on the proximal shaft of the tibia which is probably associated with a chronic stress fracture which is likely to represent response to a chronic, healed stress fracture requiring clinical correlation.” Dkt. No. 45-3 at ECF p. 12.
On August 27, 2011, Mr. Cyrkler was seen by Dr. Kwapniewski where he complained of “lower back pain, difficulty bending, also pain [left] shin, nodule [sic].” Dkt. No. 48-3 at ECF p. 2. Upon examination, Mr. Cyrkler was observed to have “l[ef]t shin painful nodule — mid portion” and a “normal range of motion all joints, no swelling or deformity.” Id. He was given a diagnosis of “lumbago,” referred to an orthopedic surgeon and given injections of triamcinolone acetonide, vitamin B-12 and ketorolac ■tromethamine in his back. Id. at ECF p.2-3.
Mr. Cyrkler followed up with Dr. Kwap-niewski on August 29, 2011, “complaining
Mr. Cyrkler received a third set of injections on August 30, 2011. Id. at ECF p. 11. He was still complaining of “low back pain although injections helped a lot.” Id. at ECF p. 6. Also on August 30, 2011, Mr. Cyrkler received an initial evaluation from a physical therapist and a treatment plan for physical therapy, ultrasound and electrical stimulation for four weeks, three times per week. Id. at ECF p. 10-15.
After beginning physical therapy, Mr. Cyrkler returned to Dr. Bitner on September 12, 2011 complaining of “low back pain[, sjharp pain in lumbar area, has been gradually getting worse.” Id. at ECF p. 27. On examination, he had “normal sacroiliac joint mobility bilaterally, ... normal curvature of spine, mild pelvic obliquity[,]... no vertebral spine tenderness, no paraspinal tenderness, no sacroiliac joint tenderness” and his gait was “normal.” Id. Mr. Cyrkler was given a “work ex[c]use slip” and told to apply a “heating pad to affected areas 2 to 3 times a day.” Jd. at ECF p. 28.
On September 28,2011, Mr. Cyrkler was seen for an orthopedic consultation by Dr. Kent S. Lerner.
On October 12, 2011, after Mr. Cyrkler saw Dr. Lerner again, Dr. Lerner reported that he was “feeling somewhat better since he was placed on the muscle relaxant and short course of oral steroids.” Id. at ECF p. 33. On examination, “[t]he patient now forward flexes until the fingertips come within six inches of the floor....” Id. Continued physical therapy was prescribed. Id. Dp. Lerner again prescribed physical therapy on November 9, 2011, when he saw Mr. Cyrkler “overall seems
Finally, on June 12, 2015, more than three years after Mr. Cyrkler last sought medical treatment, he was evaluated by Dr. Guy W. Fried, who was not his treating physician.
Defendant argues that the “diagnostic studies establish that [Mr. Cyrider] did not sustain any acute injury in this accident to his back, neck or leg.” Dkt. No. 45-1 at ECF p. 12. Defendant also contends-that Mr. Cyrkler “has' not presented any evidence relating his degenerative disc injuries to the accident, rather than to his preexisting condition.” Id. at ECF p. 11. Finally, defendant argues that while “Mr. Cyrkler’s medical records contain references to disc herniations,” they are “devoid of both quantitative and qualitative evidence comparing his limitations to his normal functions.” Id. at ECF p. 12. '
In response, plaintiffs argue that “[i]f [Mr. Cyrkler’s] degenerative disc disease
First, I note that there are questions as to whether any of the medical evidence upon which plaintiffs rely to rebut, defendant’s argument that Mr. Cyrkler has not sustained a serious injury is competent to demonstrate a serious injury.
b. Mental Injuries: Antoni Cyrkler
Mr. Cyrkler also. claims that he has “felt upset and depressed since the crash” and that a “psychotherapist has diagnosed [him] with post traumatic stress disorder as a result of the crash.” Dkt. No. 45-8 at ECF p. 4. He testified that he saw a psychologist “[bjeeause I had nightmares” and because he has fear “[r]iding in a car or driving a car in the rain.” Dkt. No. 45-4 at 24:22-25:14. Following the accident, Mr. Cyrkler was evaluated by Alicja Krzych Klauber,
“PTSD may constitute [a serious] injury when it is causally related to a motor vehicle accident and demonstrated by objective medical evidence.” Krivit v. Pitula, 79 A.D.3d 1432, 912 N.Y.S.2d 789, 790 (2010). Defendant argues that. Mr. Cyrkler’s “complaints and symptoms (nightmares and fear of riding in a car in the rain) fail to even come close to meeting the criteria for post-traumatic stress disorder, or even to rise to the level of a serious psychological injury.” Dkt. No. 45-1 at ECF p. 13. In response, plaintiff argues that “Defendant has presented no evidence
I find that there is insufficient record evidence to raise a material question of fact as to whether Mr. Cyrkler suffered emotional injuries which were permanent and consequential or significantly limiting within the meaning of the New York Insurance Law. There is no testimony from Mr. Cyrkler that, as a result of his emotional status, his daily activities were significantly impaired after the accident. Further, even if Ms. Klauber’s reports were not required to be sworn or accompanied by an affidavit, they are not enough to support Mr. Cyrkler’s claim that he suffered a permanent and consequential or significantly limiting mental injury. Although she diagnosed Mr. Cyrkler with PTSD, saw him on numerous occasions between September 2011 and May 2012, and her treatment records reflect that Mr. Cyrkler expressed anxiety and fear following the accident, her records also demonstrate that Mr. Cyrkler improved with treatment, and ultimately decided that he was ready to terminate treatment. Ms. Klauber’s records do not provide objective support for a finding that Mr. Cyrkler was significantly limited in his life activities by his psychological diagnosis. Nor does the unsworn evaluation of Dr. Fried.
2. Permanent or Significant Injuries: Irena Cyrkler
a. Physical Injuries
Mrs. Cyrkler seeks to recover damages for physical injuries to her cervical and lumbar spine. See Dkt. No. 45-4 at ECF p. 22. Defendant argues that “Mrs. Cyrkler is almost 60 years-old and has worked a physically demanding job her entire adult life.” Dkt. No. 45-1 at ECF p. 15. Defendant contends that, like Mr. Cyrkler, “Mrs. Cyrkler also had pre-exist-ing degenerative back conditions that were consistent with her age and her profession.” Id. at ECF p. 16-17. Defendant asserts that “[t]here is no evidence from a treating physician that Mrs. Cyrkler has any permanent limitations or restrictions as a result of the accident.” Id. at ECF p. 16.
Mrs. Cyrkler testified that she did not seek treatment at the hospital immediately following the accident. Dkt. No. 45-5 at 39:1-4. She explained that “[i]n two days, my daughter was getting married, and I
An August 19, 2011 CT of Mrs. Cyrk-ler’s spine showed “degenerative disc disease with discogenic endplate sclerosis and asymmetric degenerative hypertrophy of the right uncinate process” at the C3-4 level. Dkt. No. 48-7 at ECF p. 3. Also, “[a]t the C4-6 level there is advanced disc degeneration with diffuse posterior end-plate ridging” and “mild degree of degenerative osseous foraminal encroachment on right.” Id. at ECF p. 4. “A similar pattern of advanced degenerative disc disease” was exhibited at the C5-6 level. Id. The scan “impl[ied] disc herniation at this level,” although “disc herniation proper [was] not visualized.” Id. “At the C6-7 level advanced disc degeneration with diffuse posterior endplate ridging-annular bulge [were] evident.” Id. The reviewing radiologist concluded that the CT scan showed, inter alia, “[a]dvanced multilevel degenerative disc disease throughout the C3-7 segment.” Id. Noting “[a]symmetry.. .characterized by slight rotation of Cl on 2,” he concluded that “[although the degree of rotary sub-luxation may be on the basis of degenerative change and ligament laxity, post-traumatic etiology cannot be excluded. Further evaluation with MRI is advised for associated post-traumatic marrow edema or central canal content injury.” Id. He also concluded that “disc herniation proper is not visualized on CT and this could be elicited with MRI, if warranted.” Id. Imaging on September 12, 2011 showed “[n]o evidence of fracture/dislocation, marrow replacing process or intraspinal/paraspinous mass.” Dkt. No. 48-8 at ECF p. 2. There was also “[n]o evidence of cervical cord compression, expansion or internal signal aberration at any level.” Id. The reviewing doctor found “[straightening of normal cervical lordosis perhaps due to some muscular spasm” and “[d]isc degeneration” at C3-4, C4-5 and C6-7. Id.
On October 5, 2011, Mrs. Cyrkler saw Dr. Arthur C. Rothman for a neurological consultation. Id. at ECF p. 4. She reported that while “a course of physical therapy was recommended[,] she ha[d] not yet begun this treatment.” Id. at ECF p. 5. On examination, Dr. Rothman found that Mrs. Cyrkler’s “[c]ervical spine range of motion is decreased in all directions. There is bilateral cervical paraspinal tenderness to palpation.” Id. Relevant to Mrs. Cyrkler’s claimed physical injuries in this case, Dr. Rothman explained that her “clinical presentation is most consistent with bilateral C5 and/or C6 radiculopathies; disc hernia-tions at C3-4, C4-5 and C6-7 with a disc bulge at C5-6; [and] a persistent lumbosa-cral sprain-” Id. Dr. Rothman concluded that Mrs. Cyrkler’s “complaints are causally related to this accident.” Id. at ECF p. 3. He recommended “a course of physical therapy for the patient’s cervical and lumbar pain” and ordered “electro-diagnostic studies of the bilateral upper extremities with the associated paraspinal muscles” to “help delineate the specific neurological pathophysiology of her injuries.” Id. Mrs. Cyrkler underwent the prescribed electrodiagnostic study on October 19, 2011 and Dr. Rothman reported that the results were “normal.” Id. at ECF p. 11. Although he lacked copies of Mrs. Cyrkler’s prior MRI and CT scans for review, Dr. Rothman concluded that Mrs. Cyrkler had “right sided-C5 and left-sided C6-7 radiculopathies as a result of the traumatic herniated discs seen on the MRI
On October 26, 2011, Mrs. Cyrkler had another MRI of her lumbar spine. The MRI showed “[b]road-based right herniated disc at L4-5 abutting the right L4 nerve root,” an “[ajnnulus tear of the disc at L5-Sl” and a “[b]ulge of the disc at L3-4.” Id. at ECF p. 19. Mrs. Cyrkler was examined by Dr. Steven P. Waldman on January 12, 2012. Id. at ECF p. 22. He diagnosed her as having “[ejxacerbation of previously asymptomatic cervical spondylosis and degenerative disc disease with herniation C4-5 and C6-7, multi level bulges, a protrusion or herniation affecting the right C4 nerve root, lumbar herniation at L4-5 on the right affecting the right L4 nerve root associated with lumbar L4-5 and SI radi-culopathy, annular tear at L5-S1 with a bulge at L3-4 with intractable cervicogenic and lumbar discogenic mechanical and rad-icular pain.” Id. at ECF p. 23. Dr. Wald-man recommended epidural steroid infusions. Id;
Mrs. Cyrkler received lumbar epidural steroid infusions on February 7, 2012, Dkt. No. 48-9 at ECF p. 2, and February 14, 2012. Id. at ECF p. 3. She saw Dr. Wald-man on February 23, 2012 and he reported that “[s]he has experienced near resolution of her neck pain” following the steroid epidurals. Id. at ECF p. 8. He recommended further epidural treatment, id. and she received a cervical epidural steroid infusion on May 1, 2012. Id. at ECF p. 10. On May 10, 2012, Mrs. Cyrkler saw Dr. Waldman again. He reported that Mrs. Cyrkler
indicat[e]d that she got good relief with the radicular component of her lower extremity pain, but continues to have significant right sided pain at approximately the L4-5 or L5-S1 facet level worse on extension and right side bending with rotation causing significant radiating pain into the right buttock but without new or evolving neurologic findings in the lower extremities.
Id. at ECF p. 13.
Mrs. Cyrkler received a right L4-5 facet block on May 22, 2012 and a Right L5-S1 facet block on May 29, 2012. Id. at ECF p. 15; Dkt. No. 48-10 at ECF p. 2. On June 14, 2012, Dr. Waldman reported that Mrs. Cyrkler
obtained tremendous relief from the right L4-5 block, minimal relief from the right L5-S1 block and to this day still has almost one month later 80 or 90 percent pain relief from the right L4-5 facet block. On examination there are no new or evolving neurologic findings. Her range of motion is improved. She has a smile on her face.
Dkt. No. 45-5 at ECF p. 2. He expected to release Mrs. Cyrkler ft’om treatment in six to eight weeks. Id. Plaintiff asserts that “[s]ince her June 14, 2012 appointment, Mrs. Cyrkler has not returned to see either Dr. Rothman or Dr. Waldman due to her lack of insurance and inability to pay.”
[s]he has no neck or low back pain today. She feels well, has a smile and indicates that she got significant relief from her right sided L5-S1 and L4-5 facet blocks with approximately 50 percent relief from each one of the procedures now having an improved range of motion and minimal tenderness with no new or evolving neurologic findings.
Id.
In addition to the treatment above, in an unsworn letter dated December 23, 2014, Glenn Collazo, D.C.,
Asked at her April 29, 2014 deposition whether she was still having difficulty as a result of her injuries, Mrs. Cyrkler testified that she “think[s]..that my occasional back pain is the result of the accident” and that she takes over the counter pain medication to address the pain. Dkt. No. 45-5, at 31:10-23. Then, on June 12, 2015, like her husband, Mrs. Cyrkler was evaluated by Dr. Guy W. Fried. Dkt. No. 50-1. Upon examination, Dr. Fried found that Mrs. Cyrkler “had paraspinal spasm which is
First, I note that here too, there is a question as to whether plaintiffs have set forth any evidence which would be competent to demonstrate that Mrs. Cyrkler’s injuries are serious. See Evans v. United States, 978 F.Supp.2d 148, 163 (E.D.N.Y. 2013) (finding “unsworn letters or medical reports from physicians... are inadmissible evidence that may not be considered” on summary judgment); Robinson v. United States, No. 02-5166, 2005 WL 747039, at *6 (S.D.N.Y. Mar. 31, 2005) (“unsworn medical reports are not a form of admissible evidence capable of demonstrating a serious injury”); Molina v. United States, 301 F.Supp.2d 317, 321 (S.D.N.Y. 2004) (finding evidence of bulging discs was inadmissible where it was “based upon an unsworn report from a doctor”). Further, even if I could consider as competent the evidence which plaintiffs have submitted to the Court, it is not sufficient to raise a material question of fact as to whether, as a result of the accident, Mrs. Cyrkler suffered a physical injury which was permanent and consequential or which resulted in a significant limitation of use. The conclusions that Mrs. Cyrkler’s injury is “permanent,” Dkt. No. 48-12 at ECF p. 4; Dkt. No. 50-1 at ECF p. 8, by Dr. Collazo, the chiropractor, and Dr. Fried, who was not her treating physician, are not enough. See Nasrallah v. Helio De, No. 96-8727, 1998 WL 152568, at *7 (S.D.N.Y. Apr. 2, 1998) (“a plaintiffs physician’s conclusory statements as to significance or permanence, unsupported by facts detailing the extent of the limitation, is insufficient”). Indeed, shortly after the accident Mrs. Cyrkler’s MRI results showed that she suffered from “advanced” disc degeneration. Dkt. No. 48-7 at ECF p. 4. Although Dr. Colla-zo notes that Mrs. Cyrkler “reported at the initial evaluation that she had ‘No pain’ at the time just prior to the bus accident,” nowhere does he reference the MRI findings of “advanced” disc degeneration. Dkt. No. 48-12 at ECF p. 2. See Arroyo v. Morris, 85 A.D.3d 679, 926 N.Y.S.2d 488, 489-90 (2011) (experts’ failure to reference either plaintiffs degenerative or chronic condition made them opinion on causation “speculative”). Dr. Fried’s report mentions disc degeneration (but omits the “advanced” descriptor). He does not, however, explain how he ruled out Mrs. Cyrkler’s preexisting disc degeneration as the cause of her complaints. See Green v. Jones, 133 A.D.3d 472, 19 N.Y.S.3d 514, 515-16 (2015) (finding plaintiff failed to raise a triable issue of fact because “none of her medical experts addressed or explained the finding of preexisting degeneration present in plaintiffs own medical records”).
Moreover, “[i]t is well settled that to prove a permanent consequential limitation or significant limitation of use, a plaintiff must demonstrate something more than.. .a minor, mild or slight limitation of use.” DeJesus v. Rafael, No. 00-5137, 2003 WL 21305358, at *2 (S.D.N.Y. June 5, ’2003) (citations and internal quotation omitted). An electrodiagnostic study of
b. Mental Injuries: Irena Cyrkler
Like her husband, Mrs. Cyrkler also claims that she has “felt upset and depressed since this crash” and that a “psychotherapist has diagnosed [her] with post traumatic stress disorder as a result of the crash.” Dkt. No. 45-4 at ECF p. 22. Defendant argues that Mrs. Cyrkler’s psychological complaints “fail to rise to the level of post-traumatic stress disorder, or even serious psychological injury.” Dkt. No, 45-1 at ECF p. 17.
Mrs. Cyrkler testified that she saw a, psychologist for “[a]bout six, seven months,” Dkt. No. 45-5 at 27:1-4, and that, like Mr. Cyrkler she has nightmares and is “afraid of the rain” and “afraid to ride in a car.” Id. at 33:8-12; 34:19-20. As for Mr. Cyrkler, Mrs. Cyrkler’s “psychologist” was Alicja Krzych Klauber, a licensed clinical social worker.
I find that there is insufficient record evidence to raise a material question, of fact as to whether Mrs. Cyrkler suffered emotional injuries which were permanent and consequential or significantly limiting within the meaning of the New York Insurance Law. In particular, there is no evidence that Mrs. Cyrkler’s claimed psychological injury has impeded her from performing her ordinary functions in a consequential or significant way. For example, as defendant contends, there is no “evidence that her alleged nightmares and fear of ‘riding in a car in the rain’ ever prevented her from actually riding in the car in rain.” Dkt. No. 45-1 at ECF p. 18. As with Mr. Cyrkler, Mrs. Cyrkler’s treatment records reflect that her fear and anxiety improved with treatment and the passage of time. Ms. Klauber’s finding that Mrs. Cyrkler felt “cheerful,” combined with Mrs. Cyrkler’s testimony that she was helped by the treatment she received ancl that she, was feeling better” are inconsistent with her claim that she only stopped psychological treatment because of “lack of money.” I find that there is insufficient objective support in her treats ment records or in the unsworn evaluation of Dr, Fried to permit me to find that Mrs. Cyrkler was significantly limited in her life activities by her diagnosed PTSD.
3. 90/180 Day Injuries
Defendant asserts that in addition to not being able to prove they suffered permanent or significant physical or mental injuries, neither Mr, Cyrkler nor Mrs. Cyrkler have shown that they can meet the. threshold under the 90/180 day rule. Defendant asserts that “[w]hile Mr. Cyrk-ler states that he was unable to return to work for six months, he has provided medical excuses for his absence from work for less than three weeks between August 3, 2011 and October 23, 2011.” Dkt. No. 45-1 at ECF p. 14. Defendant contends that Mr. Cyrkler “has provided absolutely nothing to .substantiate his claim that he remained out of work past that point and no doctor recommended that he be out of work past that point.” Id. As for Mrs. Cyrkler, defendant argues that “no doctor ever restricted Mrs. Cyrkler’s activities” and that, “although she testified that she did miss approximately two months of work because she ‘didn’t feel well enough to work so hard,’ she has, however, since returned to her independent contractor job as a house cleaner. Dkt. No. 45-1 at ECF p. 17, citing Dkt. No. 45-5 at 31:3-6; see also Dkt No. 45-5 at 32:5-9. As defendant notes, Dkt. No. 49 at ECF p. 5, plaintiff does not specifically respond to defendant’s arguments with respect to the application of the 90/180 day category to either of the plaintiffs’ claims,
I agree with defendant that neither plaintiff has met the threshold for application of the 90/180 day category to their claims. “Self-serving statements by a plaintiff are insufficient to establish a serious injury under the 90/180 category.” Rivera v. United States, No. 10-5767, 2012 WL 3132667, at *12 (S.D.N.Y. July 31, 2012); see also Vargas v. Tomorrow Travel & Tour, Inc., 74 A.D.3d 1626, 904 N.Y.S.2d 248, 250 (2010) (“subjective complaints of
III. Conclusion
Because plaintiffs have not raised a triable issue of fact in opposition to defendant’s prima facie showing that neither plaintiff has suffered a serious physical or mental injury within the meaning of Section 5102(d) of the New York Insurance law, I will grant summary judgment in favor of defendant.
An appropriate Order follows.
.. .Although they have not been terminated as parties to the case, defendant contends that “the claims of the five other plaintiffs have been resolved.” Dkt. No. 45-1 at ECF p. 2.
. Defendant contends that it is incorrectly
. While defendant’s motion states that it is a motion to dismiss it includes a section titled, “Standards for Summary Judgment” and appends documents to its motion. Accordingly, I informed the parties that I would consider the motion as one for summary judgment on October 7, 2015 (Dkt. No. 51) and provided the parties with an opportunity to file any additional papers they deemed necessary in accordance with Rule 12(d) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”).
. Under the No-Fault law, a serious injury is defined to include:
a pérsonal 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*351 -eighty days immediately following the occurrence of the injury or impairment.
N.Y. Ins. Law § 5102(d).
. The MVFRL defines "serious injury” as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement." 75 Pa. C.S. § 1702.
The "serious impairment of body function” threshold contains two inquiries: a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident? b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally; medical testimony will be needed to establish the existence, extent, and permanency of the impairment... .In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.
Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 740 (1998).
. Plaintiffs also note that under the MVFRL,
[a]n individual who is not an owner of a currently registered private passenger motor vehicle and who is not a named insured or insured under any private passenger motor vehicle policy shall not be precluded from maintaining an action for noneconom-' ic loss or economic loss sustained in a motor vehicle accident -as the consequence of the fault of another person pursuant to applicable tort law. ;,
75 Pa. C.S. § 1705(b)(3). But in defendant’s reply brief, it contends that "[d]uring their depositions the plaintiffs testified that they have a car that is registered and insured in their domicile state of New Jersey.” Dkt. No. 49 at ECF p. 2.
. Dr. Lerner’s initial report is provided on letterhead, but is unsigned. Dkt. No. 48-3 at ECF p. 30-31. His subsequent letters are also unsigned and are not on letterhead. Dkt. No. 48-3 at ECF p. 33; Dkt. No. 48-4 at ECF p. 2, 21. None of Dr. Lerner’s reports are sworn. Nor are any of the other medical reports which plaintiffs have submitted to the court pertaining to either Mr. or Mrs. Cyrkler. I note also that plaintiffs have not submitted an affidavit from Dr. Lerner or from any of the other physicians who treated either Mr. Cyrk-ler or Mrs. Cyrkler.
. Defendant argues that "Mr. Cyrkler was last treated nearly three years ago” and the gap in treatment undercuts his serious injury argument. Dkt. No. 45-1 at ECF p. 13. Plaintiff responds that Mr. Cyrkler testified "that he was uninsured and lacked the financial resources to continue treatment" and that "Dr. Lerner (and his physical therapist) concluded that Mr. Cyrkler had reached maximum medical improvement and should only return if there were a chance in his circumstances.” Dkt. No. 47 at ECF p. 23. Defendant responds that "Mr. Cyrkler has more than enough financial resources to continue treatment because he still has over $25,000 left-in'unused [personal injury protection] benefits” -under the No-Fault law. Dkt. No. 49 at ECF p. 8.
"While a cessation of treatment is not dispositive... a plaintiff who terminates therapeutic measures following the accident. ..must offer some reasonable explanation for having done so.” Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278, 283 (2005). While the discontinuation of benefits may constitute such an explanation, this is not the case where, as here, plaintiff provides no "proof that he was treated until No-Fault would not pay for further therapy.” Satterfield v. Maldonado, 127 F.Supp.3d 177, 193, No. 14-0627, 2015 WL 5098103, at *13 (S.D.N.Y. Aug. 31, 2015).
. ‘‘[Alttached reports to physician affidavits including unsworn MRI reports interpreted by the physician’s affidavit are considered admissible evidence,” Evans v. United States, 978 F.Supp.2d 148, 163 (E.D.N.Y. 2013), but the medical reports which plaintiffs have submitted to the Court are not attached to any physician’s affidavit.
. I note that Ms. Klauber’s records are not sworn or accompanied by an affidavit. I also nóte that licensed clinical social workers are not specifically covered under Rule 2106 of the New York Civil Practice Law and Rules. See N.Y. C.P.L.R. 2106 (McKinney). Cf. Evans v. United States, 978 F.Supp.2d 148 (E.D.N.Y. 2013) (‘‘unlike a physician’s affirmation, an affirmation from a chiropractor js not admissible unless the chiropractor first appears before a notary or other such official and formally declares the truth of the contents of the document”) (citations and alteration omitted).
. As defendant argues in its August 24, 2014 response to plaintiffs supplemental exhibits, Dr. Fried’s curriculum vitae is silent about any training or experience he has in treating psychological issues.
. Plaintiffs argue that Mrs. Cyrkler has incurred an economic loss in excess of $50,000 as a result of the injuries she incurred in the bus accident, Dkt. No. 47 at ECF p. 10, and that "she continues to owe different providers in excess of $30,000 for medical treatment after exhausting the New York statutory $50,000 requirement.” Id. at ECF p. 25. She
. The letter states that Mrs. Cyrkler was involved in a.bus accident "in Pennsylvania," apparently refers in error to an "MVA [ (motor vehicle accident)] of 5/28/12” and does not state whether Dr. Collazo was Mrs. Cyrk-ler’s treating chiropractor. See Dkt, No. 48-12. Although the letter states that it is based on. "any and all office notes, test results, ex-animation and treatment reports, and any other materials regarding the patient’s care that were available to us at the time of preparation,” Id. at 4, plaintiffs have not submitted any of the underlying records of Mrs. Cyrk-ler’s chiropractic treatment with their motion.
. Ms. Klauber’s records of her visits with • Mrs. Cyrlder are not sworn or accompanied by an affidavit. Dkt. No. 48-13 at ECF p. 6-14.
. Because 1 will grant summary judgment in defendant’s favor with respect to the Cyrklers’ claims, I need not consider defendants’ motion to the extent that it seeks dismissal of plaintiffs’ claims for punitive damages. See Dkt. No. 45 at ECF p. 18-22,
Reference
- Full Case Name
- Katarzyna GRONDECKI v. AXIOM MANAGEMENT, INC.
- Status
- Published