Tenzen et al v. Hirschfeld et al, No. 1:2010cv00050 - Document 25 (E.D.N.Y. 2011)
Court Description: ORDER granting in part and denying in part 18 Motion for Summary Judgment. Ordered by Senior Judge I. Leo Glasser on 12/5/2011. (Green, Dana)
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Tenzen et al v. Hirschfeld et al Doc. 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x J ESSICA TENZEN & J AMIE TENZEN, Plaintiffs, Mem orandum and Order 10 -cv-50 - against SUSAN HIRSCHFELD, ILAN HIRSCHFELD and CAB EAST, LLC Defendants. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiffs, J am ie Tenzen (“plaintiff” or “Tenzen”) and J essica Tenzen brought this action pursuant to New York Insurance Law § 510 4(a) (the “No Fault Statute”), seeking to recover for personal injuries they allegedly sustained as a result of a car accident with defendant, Susan Hirschfeld. This case was com m enced in the Suprem e Court of the State of New York, Kings County, and was thereafter rem oved on the basis of diversity jurisdiction to this court on J anuary 7, 20 10 . Defendants have m oved for sum m ary judgm ent on the grounds that: 1) Plaintiff J am ie Tenzen did not suffer a “serious injury” as required by the No Fault Statute; and 2) Plaintiff J essica Tenzen’s claim is barred by a release. For the following reasons, defendants’ m otion is GRANTED IN PART. BACKGROU N D The following facts are undisputed, unless otherwise noted.1 On the evening of October 23, 20 0 8, Susan Hirschfeld was driving an autom obile owned by defendants 1 Plaintiff has not filed a Rule 56.1 statement in opposition to this m otion. “All m aterial facts set forth in the [Rule 56.1] statem ent . . . by the m oving party will be deemed adm itted unless controverted by the 1 Dockets.Justia.com Ilan Hirschfeld and Cab East, LLC. Com pl. ¶ 28. While traveling east on East 57th Street, New York, New York, Hirschfeld’s car rear-ended a car driven by J essica Tenzen. Com pl. ¶ 30 . J essica Tenzen’s sister, J am ie Tenzen, was a restrained passenger in the front seat of that car. Id. The force of the collision caused the Tenzens’ car to rear-end the vehicle stopped directly in front of theirs. Affirm ation of J ohn W. Kondulis dated April 12, 20 11 (“Kondulis Aff.”) Ex. G at 6-17. Im m ediately following the accident, J am ie Tenzen com plained of a headache. Id. at 20 . She was taken by am bulance to New York-Presbyterian Hospital where x-rays were taken of her neck and back, showing no fractures or other injuries. Id. at 20 -22; Opp. Aff. Ex. A. She was released after approxim ately three hours. Opp. Aff. Ex. A. Tenzen alleges that as a result of the accident, she suffered a herniated disk in her neck, causing a perm anent loss of range of m otion in her neck, daily pain in her neck and shoulders, and num bness in her arm s and fingers. Kondulis Aff. Ex. G. On April 28, 20 10 , pursuant to a stipulation of the parties, the Court ordered the dism issal with prejudice of plaintiffs’ claim s against defendant Cab East, LLC. Kondulis Aff. Ex. D. Thus, the claim s rem aining before this Court are those brought by J essica Tenzen and J am ie Tenzen against Susan Hirschfeld and Ilan Hirschfeld. JU RISD ICTION Diversity of citizenship, which is not disputed, provides a basis for jurisdiction. [Rule 56.1] statement required to be served by the opposing party.” Loc. Civ. R. 56.1(c). However, the Court has broad discretion to overlook defendants’ failure to com ply with Rule 56.1 and m ay, at its discretion, opt to consider affidavits or other adm issible evidence. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 20 0 1). Here, plaintiffs have subm itted sworn affirm ations from physicians in opposition that m eet the 28 U.S.C. § 1746 standard. Accordingly, the Court accepts as true the m aterial facts contained in defendants’ Local Rule 56.1 statemen t, except as they are controverted by plaintiffs’ affirm ations. The Court will also consider J am ie Tenzen’s sworn deposition testim ony. 2 See 28 U.S.C. § 1332(a)(1). Plaintiffs are both residents of Kings County, New York. Com pl. ¶¶ 1-2. Defendants Susan Hirschfeld and Ilan Hirschfeld are citizens of New J ersey. Notice of Rem oval ¶ 3. Defendant Cab East LLC is a lim ited liability corporation incorporated in Delaware, with its principal place of business in Atlanta, Georgia. Id. Plaintiffs seek m ore than $ 75,0 0 0 .0 0 in dam ages. Kondulis Aff. Ex. C. ¶ 12. D ISCU SSION I. Plain tiff Je s s ica Te n ze n ’s Re le as e As an initial m atter, the Court considers defendants’ m otion for sum m ary judgm ent as to plaintiff J essica Tenzen. In consideration of $ 7,50 0 .0 0 , on October 26, 20 0 9 J essica Tenzen executed a “Release in Full of All Bodily Injury Claim s Only,” broadly releasing the defendants from all liability for any causes of action prior to the date of the release. Pl.’s R. 56.1 ¶ 13; Kondulis Aff. Ex. F. Plaintiffs have not opposed sum m ary judgm ent on this m atter. Consequently, the Court grants sum m ary judgm ent for the defendants as to plaintiff J essica Tenzen. II. “Se rio u s In ju ry” a n d Th e N e w Yo rk N o Fau lt Statu te New York substantive law governs this diversity action pursuant to well-settled principles governing the choice of law in diversity actions. Lee v. Bankers Trust Co., 166 F.3d 540 , 545 (2d Cir.1999). New York’s No Fault statute for autom obile accidents bars recovery for 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 m otor vehicle in this state for econom ic loss. A right of recovery for non-econom ic loss does exist, however, “in the case of serious injury.” Morrone v. McJ unkin, No. 98 Civ. 2163, 1998 WL 872419, at *1 (S.D.N.Y.1998); N.Y. Ins. Law § 510 4(a) (McKinney 1998). The 3 New York Court of Appeals has long recognized that “the legislative intent underlying the No-Fault Law was to weed out frivolous claim s and lim it recovery to significant injuries.” Dufel v. Green, 84 N.Y.2d 795, 798, 647 N.E.2d 10 5, 10 7, 622 N.Y.S.2d 90 0 , 90 2 (1995). “Tacit in this legislative enactm ent is that any injury not falling within the new definition of serious injury is m inor and a trial by jury is not perm itted under the no-fault system .” Licari v. Elliott, 57 N.Y.2d 230 , 235, 455 N.Y.S.2d 570 , 441 N.E.2d 10 88 (1982). According to New York law, “[w]hether a claim ed injury m eets the statutory definition of a ‘serious injury’ is a question of law which m ay properly be decided by the court on a m otion for sum m ary judgm ent.” Martin v. Schwartz, 30 8 A.D.2d 318, 319, 766 N.Y.S.2d 13, 15 (1st Dep’t 20 0 3) (citing Licari, 57 N.Y.2d at 237). Nine categories of injuries m ay constitute a “serious injury” under the statute: a personal injury which results in death; dism em berm ent; significant disfigurem ent; a fracture; loss of a fetus; perm anent loss or use of a body organ, m em ber, function or system ; perm anent consequential lim itation of a use of a body organ or m em ber; significant lim itation of use of a body function or system ; or a m edically determ ined injury or im pairm ent of a non-perm anent nature which prevents the injured person from perform ing substantially all of the m aterial acts which constitute such person's usual and custom ary daily activities for not less than ninety days during the one hundred and eighty days im m ediately following the occurrence of the injury or im pairm ent. N.Y. Ins. Law § 510 2(d) (McKinney 1998). To dem onstrate that her injuries are “serious injuries” entitling her to recovery under the no-fault statute, plaintiff m ust dem onstrate that her injuries fall into one of the nine statutory categories. Plaintiff here does not com plain of any injury resulting in dism em berm ent; significant disfigurem ent; a fracture; loss of a fetus, or a perm anent 4 loss or use of a body organ, m em ber, function or system . The issue, then, is whether she suffered: 1) a perm anent consequential lim itation of use of a body organ or m em ber; 2) a significant lim itation of use of a body function or system ; or 3) an inability to attend to her usual activities for a period in excess of 90 days during the first 180 days following the accident. Sum m ary judgm ent against a plaintiff who seeks recovery under New York Insurance Law is appropriate when the evidence would not warrant a jury finding that the injury falls within one of the nine statutory categories. Licari, 57 N.Y.2d at 230 . Thus, once a defendant establishes a prim a facie case that plaintiff's injuries are not serious, the burden shifts to plaintiff to dem onstrate that she has endured a serious injury. Morrone, 1998 WL 872419 at *2 (citing Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 , 991, 591 N.E.2d 1176 (1992)). A plaintiff m ay defeat sum m ary judgm ent through adm issible evidence in the form of sworn affidavits by physicians. Morrone, 1998 WL 872419 at *2 (citing Bonsu v. Metro. Suburban Bus Auth., 20 2 A.D.2d 538, 610 N.Y.S.2d 813, 813-14 (2d Dep’t 1994); McLoyrd v. Pennypacker, 178 A.D.2d 227, 577 N.Y.S.2d 272, 273 (1st Dep’t 1991), appeal denied, 79 N.Y.2d 754, 581 N.Y.S.2d 665, 590 N.E.2d 250 (1992)). Defendants’ sum m ary judgm ent m otion m ay be prem ised on unsworn reports by plaintiff's physicians, but defendants m ust provide evidence from their own physicians in the form of sworn affidavits. William s v. Ritchie, 139 F. Supp. 2d 330 , 334 (E.D.N.Y. 20 0 1) (citing McGovern v. Walls, 20 1 A.D.2d 628, 60 7 N.Y.S.2d 964 (2d Dep’t 1994); Looney v. Epervary, 194 A.D.2d 591, 599 N.Y.S.2d 989, 989– 90 (2d Dep’t 1993)). 5 A. D e fe n d an ts ’ Prim a Facie Sh o w in g In support of their m otion for sum m ary judgm ent, defendants subm it sworn affidavits from two physicians: Dr. Alan J . Zim m erm an and Dr. J oseph C. Elfenbein. See Kondulis Aff. Ex. H-K. Dr. Elfenbein exam ined Tenzen three tim es between Decem ber 29, 20 0 8 and March 25, 20 0 9, diagnosing her with a cervical sprain. Id. Ex. I-K. At all three exam inations, he observed a “full range of m otion of the cervical spine” with flexion to 45 degrees (45-60 norm al), extension to 45 degrees (45-60 norm al), bilateral rotation to 70 degrees (70 -90 norm al), and bilateral bending to 45 degrees (45-60 norm al). Id. He prescribed physical therapy but found “she m ay work and carry out activities of daily living without restrictions or lim itations” and “there is no need for household help, special supplies, or special transportation.” Id. Ex. I. At the third exam ination, Dr. Elfenbein concluded that her cervical and shoulder sprains were resolved, no further treatm ent was needed, and “there is no evidence of an orthopedic disability.” Id. Ex. K. Dr. Zim m erm an exam ined Tenzen once, on October 5, 20 10 . Kondulis Aff. Ex. H. Dr. Zim m erm an observed that Tenzen m oved her head “freely” during questioning and exhibited “norm al m uscle contours without spasm or atrophy.” Id. By sixteen different m easurem ents, Dr. Zim m erm an recorded plaintiff’s range of m otion in her cervical spine and shoulders was within the norm al range. Id. He observed she “perform [ed] routine activities without difficulty” and “exam ination of the cervical spine reveals norm al m uscle contours without spasm or atrophy.” Id. A neurological exam revealed “Motor strength is 5/ 5 in all groups tested.” Id. Dr. Zim m erm an concluded that 6 plaintiff had suffered from a cervical sprain that had resolved and “There is no disability. There is no perm anency.” Kondulis Aff. Ex. H. This evidence is sufficient to establish defendants’ prim a facie case that plaintiff did not sustain a “serious injury” with regard to the significant lim itation and perm anent consequential injury claim s. A prim a facie showing is satisfied when an exam ining physician affirm s that no serious injury exists. See Davis v. Ogando, No. 0 9 Civ. 2761 (SMG), 20 11 WL 4975379, at * 3 (E.D.N.Y. Oct. 19, 20 11) (citing Toure v. Avis Rent A Car Sys. Inc., 98 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197 (20 0 2); Gaddy, 79 N.Y.2d at 956-57). Both physicians’ affirm ations m eet this standard. Defendants have also established a prim a facie case that plaintiff was not unable to attend to her usual activities for a period in excess of 90 days during the first 180 days following the accident. This ninety-day requirem ent is to be construed literally and is a necessary condition to bringing a claim . Tsveitel v. Geoghegan, No. 0 5 Civ. 5721 (DGT), 20 0 9 WL 2182379, at *4 (E.D.N.Y. J uly 21, 20 0 9) (citing Licari, 57 N.Y.2d at 236). Here, defendants rely on J am ie Tenzen’s own deposition testim ony, in which she stated that she returned to work the day after the accident and did not m iss any days of work as a direct result of the accident. Kondulis Aff. Ex. G at 33, 40 . The only days of work Tenzen m issed were due to an allergic reaction to epidural steroids first adm inistered Septem ber 23, 20 0 9, beyond the 180 day lim it. Even if those injections had occurred within the 180 days, courts have repeatedly held that plaintiffs cannot satisfy the “90 / 180 ” requirem ent where they have m issed only a few days of work following the accident. See, e.g., id. (hom e confinem ent for seven days did not satisfy statute); Beccarino v. Szadura, No. 0 8 Civ. 10 90 (LDW), 20 0 9 WL 247410 5, at *2 (E.D.N.Y. Aug. 7 10 , 20 0 9) (two week absence from work did not satisfy statute); Licari, 57 N.Y.2d at 238 (twenty-four day absence from work, followed by resum ption of plaintiff’s usual taxi driving schedule did not satisfy statute); Szabo v. XYZ, Two Way Radio Taxi Assoc., 267 A.D.2d 134, 135 (1999) (two week absence from work, coupled with lim itations with respect to plaintiff’s com puter work and her inability to hold sm all things the way she used to, did not m eet statute); J ones v. Gooding, 50 A.D.3d 968, 968, 856 N.Y.S.2d 661 (2d Dep’t 20 0 8) (one day absence from work did not satisfy statute); Hernandez v. Cerda, 271 A.D.2d 569, 570 , 70 7 N.Y.S.2d 332 (2d Dep’t 20 0 0 ) (two week absence from work, followed by return to full-tim e em ploym ent, did not satisfy statute). An absence from work of four days clearly does not fulfill the statutory requirem ent. B. Plain tiff’s Re bu ttal Since defendants have offered m edical evidence that, if credited, establishes the accident did not cause any serious injury, the burden shifts to plaintiff. In order to refute defendants’ showing and establish that she sustained a serious injury, plaintiff m ust subm it “‘objective proof,’ such as ‘an expert’s designation of a num eric percentage of a plaintiff’s loss of range of m otion’ or ‘[a]n expert’s qualitative assessm ent of a plaintiff’s condition . . . , provided that the evaluation has an objective basis and com pares the plaintiff's lim itations to the norm al function, purpose and use of the affected body organ, m em ber, function or system .’” Suarez v. Abe, 4 A.D.3d 288, 289, 772 N.Y.S.2d 317 (20 0 4) (quoting Toure, 98 N.Y.2d at 350 ). “Such an ‘objective basis’ for the expert’s assessm ent m ay be provided by, for exam ple, com petent interpretations of MRI or CT scans.” Id. 8 In opposition to defendants’ evidence, plaintiff subm itted sworn affirm ations from three physicians and a chiropractor.2 See Opp. Aff. Ex. B, D, E & F. 1. D r. An d re w Me ro la Tenzen was exam ined by Dr. Andrew Merola once, on October 27, 20 0 8, shortly after the accident. Opp. Aff. Ex. B. She com plained of pain in her neck and left shoulder, accom panied by num bness, and he observed a loss of m otion in her neck and shoulders. Id. Dr. Merola referred Tenzen to Dr. Douglas Schwartz for physical therapy and ordered an MRI, which revealed a herniated disk at the C5-C6 segm ent. Id.; Opp. Aff. Ex. C. 2 . D r. D o u glas Sch w artz Dr. Schwartz treated Tenzen for approxim ately four m onths, from Novem ber 6, 20 0 8 to February 13, 20 0 9. Opp. Aff. Ex. D. During that tim e Tenzen underwent physical therapy three tim es per week. Trans. 25-28. On four separate occasions, Dr. Schwartz conducted a lateral flexion test and a rotation test of Tenzen’s range of m otion in her neck and shoulders. Opp. Aff. Ex. D. These tests indicated that for the four m onths that Dr. Schwartz treated her, Tenzen consistently exhibited a 50 % loss of range of lateral flexion and a 62.5% loss of range of rotation on both left and right sides. Id. 2 As a chiropractor, Paul Salinas possesses a Doctor of Chiropractic (“D.C.”) degree. The weight to be accorded the testim ony of a chiropractor, as opposed to those with a m edical degree (“M.D.”), is not without controversy. See, e.g., Diaz v. Shalala, 59 F.3d 30 7, 312-314 (2d Cir. 1995) (discussing, in the social security context, conflicting opinions on whether chiropractors are an acceptable source of m edical inform ation); Barnable v. First Fortis Life Ins. Co., 44 F. Supp. 2d 196, 20 4 (E.D.N.Y. 1999)(“A chiropractor is not a m edical doctor and a chiropractic opinion is not accorded the sam e weight and respect as a form al m edical opinion.”). However, in the context of the New York No Fault Statute, a chiropractor’s affidavit can constitute sufficient eviden ce to establish a “serious injury” occurred. See, e.g., Clervoix v. Edwards, 10 A.D.3d 626, 781 N.Y.S.2d 690 (2d Dep’t 20 0 4) (chiropractor's affidavit specifying perm anent, decreased range of m otion, along with MRI evidence of herniated discs held sufficient to defeat sum m ary judgm ent). 9 Dr. Schwartz also recorded that “sensation to light touch/ pinprick was dim inished at the right C5 & C6 derm atom es, m uscle strength was 4+/ 5 at the cervical paraspinals.” Id. Dr. Schwartz stated “it is m y opinion, with a reasonable degree of m edical certainty, that Ms. Tenzen has sustained a significant and perm anent lim itation to his [sic] cervical spine as a direct result of the m otor vehicle accident on October 23, 20 0 8.” Id. 3 . D r. Ard e n M. Kais m an Dr. Kaism an exam ined Tenzen twice, on Septem ber 10 , 20 0 9 and May 12, 20 11. Opp. Aff. Ex. F. ¶¶ 4-5. On both occasions, Tenzen com plained of neck pain and num bness in her left hand. Kaism an perform ed range of m ovem ent tests, finding the following loss of m ovem ent: Date ROM Norm al 9/ 10 / 0 9 5/ 12/ 11 9/ 10 / 0 9 5/ 12/ 11 9/ 10 / 0 9 9/ 10 / 0 9 5/ 12/ 11 5/ 12/ 11 Flexion Flexion Extension Extension Left Rotation Right Rotation Left Rotation Right Rotation Range of Motion 35 35 35 30 50 50 50 50 45 45 45 45 80 80 80 80 Degree Loss Percent Loss 10 10 10 15 30 30 30 30 22.2% 22.2% 22.2% 33.3% 37.5% 37.5% 37.5% 37.5% Id. ¶ 6. Dr. Kaism an prescribed cortisone steroid injections into Tenzen’s cervical spine, perform ed under local anesthetic. Id. Ex. F ¶ 8-9 & Ex. G. Tenzen was given injections on Septem ber 23, 20 0 9 and October 7, 20 0 9 but ceased the treatm ent after the injections caused serious side effects. Opp. Aff. Ex. F ¶ 9. Dr. Kaism an concluded in his affirm ation that “the patient had no im provem ent of her pain. A perm anent disability is noted in the cervical spine.” Id. ¶ 12. 10 4 . D r. Pau l M. Salin as Salinas, a chiropractor, exam ined Tenzen on March 13, 20 0 9, at which tim e she com plained of neck pain and num bness in her left hand. Opp. Aff. Ex. E. A range of m otion exam ination on March 13, 20 0 9 indicated Tenzen suffered the following loss of m otion: ROM Flexion Extension R. Lateral Flexion L. Lateral Flexion R. Rotation L. Rotation Norm al 45 45 45 45 80 80 ROM Found 40 20 30 30 50 60 Degree of Loss 5 25 15 15 30 20 Salinas treated Tenzen with chiropractic manipulation on March 23, March 25, March 27, and March 30 , 20 0 9, with “m ild to little im provem ent.” Id. Salinas concluded “Ms. Tenzen has sustained a significant and perm anent lim itation to her cervical spine.” Id. 5. Pe rm an e n t Co n s e qu e n tial Lim itatio n an d Sign ifican t Lim itatio n To establish a perm anent consequential lim itation of the use of a body organ or m em ber, a plaintiff m ust dem onstrate, through com petent m edical evidence, that her injury was both perm anent and consequential. See Tsveitel, 20 0 9 WL 2182379 at *13 (citing Kordana v. Pom ellito, 121 A.D.2d 783, 784, 50 3 N.Y.S.2d 198 (3rd Dep’t 1986)). “In the context of the N.Y. Insurance Law, the term ‘consequential’ m eans ‘im portant’ or ‘significant.’” Id. (quoting Kordana, 121 A.D.2d at 784, 50 3 N.Y.S.2d 198). Thus, a plaintiff m ust dem onstrate “‘som ething m ore than . . . a m inor, m ild or slight lim itation of use.’” Ventra v. United States, 121 F. Supp. 2d 326, 333 (S.D.N.Y. 20 0 0 ) (quoting Licari, 57 N.Y.2d at 236. 11 To establish a “significant lim itation of use of a body function or system ,” plaintiff m ust show “som ething m ore than a m inor lim itation of use. . . . A m inor, m ild or slight lim itation of use should be classified as insignificant within the m eaning of the statute.” Licari, 57 N.Y.2d at 236. “While a ‘significant lim itation’ does not have to be perm anent to qualify as such, its significance is m easured in both ‘degree and duration.’” J ones v. United States, 40 8 F. Supp. 2d 10 7, 120 (E.D.N.Y.20 0 6) (quoting Gualtieri v. Farina, 283 F. Supp. 2d 917, 925 (S.D.N.Y. 20 0 3)). To substantiate these claim s and refute defendants’ prim a facie case, “[p]laintiff m ust present objective proof of injury, as subjective com plaints of pain will not, standing alone, support a claim for serious injury.” Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 20 10 ) (citing Son v. Lockwood, 0 7 Civ. 4189 (J MA), 20 0 8 WL 5111287, at *5-6 (E.D.N.Y. Nov. 26, 20 0 8)). “To prove the extent or degree of physical lim itation, an expert’s designation of a num eric percentage of a plaintiff's loss of range of m otion can be used to substantiate a claim of serious injury. . . . An expert’s qualitative assessm ent of a plaintiff’s condition also m ay suffice, provided that the evaluation has an objective basis and com pares the plaintiff's lim itations to the norm al function, purpose, and use of the affected body organ, m em ber, function, or system .” Toure, 98 N.Y.2d at 350 (em phasis in original) (citations om itted). It is not enough m erely to dem onstrate that Tenzen suffered a herniated disk. See Uddin v. Cooper, 32 A.D.3d 270 , 271 (1st Dep’t 20 0 6) (evidence of herniated disk without evidence of perm anent consequential lim itation insufficient to create issue of fact concerning existence of serious injury); Kearse v. New York City Tr. Auth., 789 N.Y.S.2d 281 (1st Dep’t 20 0 5) 12 (“[A] disc bulge or herniation m ust be accom panied by objective evidence of the extent of alleged physical lim itations resulting from the disc injury.”). Here, Drs. Schwartz, Kaism an, and Salinas m ade specific, num eric m easurem ents of Tenzen’s loss of range of m otion as a result of the accident, ranging from a 10 % to 60 % loss. These are the type of m easurem ents necessary to m eet plaintiff’s burden of proof. See, e.g., Toure, 98 N.Y.2d at 350 (“an expert’s designation of a num eric percentage of a plaintiff's loss of range of m otion can be used to substantiate a claim of serious injury”) (internal citations om itted); Mendola v. Dem etres, 212 A.D.2d 515, 515, 622 N.Y.S.2d 30 9, 310 (2d Dep’t 1995) (physician’s specific m easurem ents of lim ited range of thoraco/ lumbar m otion in all directions was sufficient to defeat sum m ary judgm ent) (internal citations om itted). All four affirm ations also concluded that Tenzen’s loss of range of m otion was perm anent. The percentage of Tenzen’s loss of m otion recorded by Drs. Schwartz, Kaism an, and Salinas is also significant enough to dem onstrate a “serious injury.” Dr. Schwartz recorded a 50 % loss of lateral flexion and a 62% loss of rotation; Dr. Kaism an a 22% loss of flexion and a 37% loss of rotation; and Salinas a loss of 30 % lateral flexion and 2530 % rotation. “While there is no set percentage for determ ining whether a lim itation in range of m otion is sufficient to establish “serious injury,” the cases have generally found that a lim itation of twenty percent or m ore is significant for sum m ary judgm ent purposes.” Hodder v. United States, 328 F. Supp. 2d 335, 356 (E.D.N.Y. 20 0 4) (citing Thom pkins v. Santos, No. 98 Civ. 4634, 1999 WL 10 43966, at *6 (S.D.N.Y. Nov.16, 1999) (holding that a triable issue of fact existed where the physician's report indicated a 20 degree loss of m obility in the lum bar spine and a 10 degree loss of m obility in the 13 cervical spine); Am ofa v. N.S.C. Leasing Corp., 247 A.D.2d 289, 668 N.Y.S.2d 460 (1st Dep’t 1998) (finding 25% loss of spinal range of m otion significant); Livai v. Am oroso, 239 A.D.2d 565, 658 N.Y.S.2d 973 (2d Dep’t 1997) (finding 20 % restriction of m otion in cervical spine significant); Bates v. Peeples, 171 A.D.2d 635, 635, 566 N.Y.S.2d 659, 660 (2d Dep’t 1991) (affirm ing denial of sum m ary judgm ent where plaintiff had suffered a restriction of “flexion 40 degrees, extension 10 degrees, lateral bending 10 degrees”)). Taken together with evidence of a herniated disk recorded by the MRI, plaintiff’s physicians’ affirm ations raise genuine issues of m aterial fact. Pfeiffer v. Mavretic, 20 0 7 WL 2891433, at *7 (W.D.N.Y. Sept. 28, 20 0 7) (“It has been consistently held that a m easure of lim itation, together with an MRI or other form al objective test, is sufficient to create a genuine issue of m aterial fact.” (citations om itted)); see, e.g., Pom m els v. Perez, 4 N.Y.3d 566, 577, 830 N.E.2d 278, 285 (N.Y. 20 0 5) (doctor's opinion that plaintiff suffered severe and perm anent injuries, supported by m easurem ents of loss of range of m otion and an MRI revealing herniated discs, held sufficient to defeat sum m ary judgm ent); Clervoix v. Edwards, 10 A.D.3d 626, 781 N.Y.S.2d 690 (2d Dep’t 20 0 4) (treating chiropractor's affidavit specifying decreased range of m otion, along with evidence of herniated and bulging discs confirm ed by MRI, held sufficient to defeat sum m ary judgm ent). For these reasons, sum m ary judgm ent m ust be denied as to whether plaintiff suffered 1) a perm anent consequential lim itation of use of a body organ or m em ber; and 2) a significant lim itation of use of a body function or system . 6 . 9 0 / 18 0 Re qu ire m e n t To dem onstrate Tenzen suffered a “serious injury” which prevented her from perform ing “substantially all” of her daily activities for a period of 90 days out of the 180 14 days after the accident, plaintiff relies on only her deposition testimony. Opp. Aff. at 20 . Plaintiff did not subm it any m edical evidence that she is unable to conduct ordinary activities or m ust restrict her physical activities in any way. Tenzen’s allegations that her injuries fall within this category m ust be substantiated by objective m edical proof; self-serving statem ents are insufficient to raise a triable issue of fact. Hyacinthe v. United States, 0 5 Civ. 1363 (KAM), 20 0 9 WL 40 16518, at *12 (E.D.N.Y. Nov. 19, 20 0 9) (“objective m edical findings” are required to prove 90 / 180 im pairm ent) (citations om itted); William s v. Ritchie, 139 F. Supp. 2d 330 , 341 (E.D.N.Y. 20 0 1) (“Mere allegations of lim itation of body functions without m edical proof are insufficient to dem onstrate the existence of a genuine factual issue.” (quotation om itted)). Plaintiff’s deposition testim ony alone is insufficient to defeat a m otion for sum m ary judgm ent. Madden v. Lee, 0 1 Civ. 7856 (GWG), 20 0 2 WL 31398951, at *6 (citing Morris v. Pascall, 259 A.D.2d 60 2, 686 N.Y.S.2d 796 (2d Dep’t 1999)); Gualtieri, 283 F.Supp.2d at 925 (no prim a facie case of serious injury under the 90 / 180 category where plaintiff's “self-serving testim ony that she can no longer clean her house or hold her baby for long periods of tim e . . . is unsubstantiated”). However, even if Ms. Tenzen’s deposition testim ony were sufficient, it does not represent a “serious injury” under the 90 -out-of-180 -day rule. To m ake this showing, “plaintiff m ust prove that she was ‘curtailed from perform ing [her] usual activities to a great extent rather than som e slight curtailm ent.’” Gaddy, 79 N.Y.2d 955 at 958 (quoting Licari, 57 N.Y.2d at 236). Here, as in Gaddy and Licari, plaintiff’s usual activities were im peded slightly. She returned to work the day after the accident, was not absent any days during the first 180 days following the accident, and continues to 15 m aintain her position as a retail adm inistrator. Kondulis Aff. Ex. G at 39-40 . Her contention regarding her personal activities sim ilarly falls short: plaintiff alleges she som etim es has difficulty dressing herself and her six-year-old daughter cannot hang on her neck. This does not m eet the statute’s “substantially all” requirem ent. See Cooper v. Dunn, No. 99 Civ. 690 3 (ILG), 20 0 1 WL 138864, at *36 (E.D.N.Y. J an. 2, 20 0 1) (plaintiff’s inability to play basketball or do push-ups are “sim ply not losses for which recovery is perm itted” (citation om itted)); Gaddy, 167 A.D.2d 67 at 70 -71 (plaintiff’s delegation of som e household duties to daughter insufficient to defeat sum m ary judgm ent); Licari, 57 N.Y.2d at 234 (plaintiff’s testim ony that he was unable to help his wife with som e household chores and experienced occasional headaches and dizzy spells not substantial curtailm ent of daily activities); Flores v. Singh, 13 A.D.3d 20 3, 20 4, 786 N.Y.S.2d 491 (1st Dep’t 20 0 4) (som e difficulty getting dressed, inability to swim , and one-day absence from work not substantial curtailm ent of daily activities). Consequently, no reasonable jury could find that plaintiff suffered a “serious injury” under the 90 -out-of-180 day rule and defendants’ m otion for sum m ary judgm ent is granted as to this claim . 16 CON CLU SION For the foregoing reasons, the defendants’ m otion for sum m ary judgm ent is granted as to plaintiff J essica Tenzen and granted as to plaintiff J amie Tenzen’s claim of serious injury under the 90 -out-of-180 -day rule. Defendants’ m otion for sum m ary judgm ent is denied as to plaintiff J am ie Tenzen’s other claim s. SO ORD ERED . Dated: Brooklyn, New York Decem ber 5, 20 11 _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser, U.S.D.J . 17
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