22-260-cv Flores v. Bergtraum
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of April, two thousand twenty-three.
PRESENT: PIERRE N. LEVAL, DENNY CHIN, ALISON J. NATHAN, Circuit Judges.
MARGARITA FLORES, Plaintiff-Appellant, 22-260-cv
v.
MATTHEW L. BERGTRAUM, Defendant-Appellee.
For Plaintiff-Appellant: BRIAN J. ISAAC, Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY.
For Defendant-Appellee: DOMINIC P. ZAFONTE, Law Office of Eric D. Feldman, East Northport, NY (Robert Varga, Law Office of Thomas K. Moore, White Plains, NY, on the brief).
Appeal from a judgment of the United States District Court for the Southern District of
New York (Karas, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
In November 2018, as Margarita Flores was crossing the street, she was hit by a Toyota
Venza driven by Matthew Bergtraum. Flores sued Bergtraum in the Southern District of New
York, seeking compensation for neck, back, and knee injuries she allegedly suffered as a result of
the accident. The district court granted summary judgment in favor of Bergtraum, concluding that
Flores could not recover under New York’s No-Fault Insurance Law because her injuries were
neither “serious” nor caused by the accident. We assume the parties’ familiarity with the
underlying facts, procedural history, and the issues on appeal.
“We review de novo a district court’s grant of summary judgment . . . constru[ing] the facts
in the light most favorable to the non-moving party and resolv[ing] all ambiguities and draw[ing]
all reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167
(2d Cir. 2014) (internal citations and quotation marks omitted). A court will grant summary
judgment “if 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). “[T]he burden is upon
the moving party to demonstrate that no genuine issue respecting any material fact exists.” Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994). However, this
burden “may be discharged by . . . pointing out . . . that there is an absence of evidence to support
the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Personal injury claims resulting from car accidents are governed by New York’s No-Fault
Insurance Law, N.Y. Ins. Law § 5101 et seq. The law is intended “to weed out frivolous claims
and limit recovery to significant injuries” in order to help contain the cost of no-fault automobile
insurance in New York. Toure v. Avis Rent A Car Sys., Inc., 774 N.E.2d 1197, 1199 (N.Y. 2002).
2 Where, as here, liability for the accident is not at issue, to prevail in a personal injury claim under
the No-Fault Law, “a plaintiff is required to present competent, non-conclusory expert evidence
sufficient to support a finding” that (1) “the alleged injury is ‘serious’ within the meaning of
Insurance Law § 5102(d),” and (2) “the injury was proximately caused by the accident at issue.”
Carter v. Full Service, Inc., 815 N.Y.S.2d 41, 43 (App. Div. 2006). An injury is “serious” if it
falls into one of nine enumerated categories. N.Y. Ins. Law § 5102(d). At issue in this case are
three of those categories: (1) “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,” commonly referred to as 90/180 day injuries; (2) a “permanent consequential
limitation of use of a body organ or member”; and (3) a “significant limitation of use of a body
function or system.” Id. We refer to the latter two categories of injury as “long-term serious
injuries.” We agree with the district court that there is an absence of evidence showing that Flores
suffered a 90/180 day injury or long-term serious injury as a result of the accident.
First, there is an absence of evidence supporting Flores’s claim of a 90/180 day injury.
Flores herself testified that she returned to work one day after the accident and was able to continue
to complete some household tasks immediately following the accident. At most, the record reveals
“slight curtailment” of Flores’s daily routine in the first six months after the accident, which is
insufficient to create a prima facie case of a 90/180 day injury as required to survive summary
judgment. See Licari v. Elliott, 441 N.E.2d 1088, 1091 (N.Y. 1982).
Second, there is no material factual dispute as to whether Flores suffered a long-term
serious injury as a result of the accident. Flores’s claim as to her knee injury fails because she did
3 not submit any sworn physician affidavits relevant to her knee, as required to make a prima facie
case under the No-Fault law. See Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010). As
for Flores’s claims relating to her back and neck, both parties submitted sworn expert reports
finding that Flores had a diminished range of motion in her cervical and lumbar spine, which could
show a significant limitation. However, the defense expert Dr. Jared Brandoff’s sworn report
concluded that these injuries were the result of a “mild to moderate degenerative disease” and that
there was no evidence that Flores’ injuries were traumatic in origin. App’x 395–96. Dr. Brandoff
also opined that Flores was intentionally restricting her range of motion, noting that she had
displayed greater mobility when she was unaware that she was being observed, that she displayed
“‘break-away’ weakness” indicative of poor effort, and that it “would be supremely unlikely for
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22-260-cv Flores v. Bergtraum
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of April, two thousand twenty-three.
PRESENT: PIERRE N. LEVAL, DENNY CHIN, ALISON J. NATHAN, Circuit Judges.
MARGARITA FLORES, Plaintiff-Appellant, 22-260-cv
v.
MATTHEW L. BERGTRAUM, Defendant-Appellee.
For Plaintiff-Appellant: BRIAN J. ISAAC, Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY.
For Defendant-Appellee: DOMINIC P. ZAFONTE, Law Office of Eric D. Feldman, East Northport, NY (Robert Varga, Law Office of Thomas K. Moore, White Plains, NY, on the brief).
Appeal from a judgment of the United States District Court for the Southern District of
New York (Karas, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
In November 2018, as Margarita Flores was crossing the street, she was hit by a Toyota
Venza driven by Matthew Bergtraum. Flores sued Bergtraum in the Southern District of New
York, seeking compensation for neck, back, and knee injuries she allegedly suffered as a result of
the accident. The district court granted summary judgment in favor of Bergtraum, concluding that
Flores could not recover under New York’s No-Fault Insurance Law because her injuries were
neither “serious” nor caused by the accident. We assume the parties’ familiarity with the
underlying facts, procedural history, and the issues on appeal.
“We review de novo a district court’s grant of summary judgment . . . constru[ing] the facts
in the light most favorable to the non-moving party and resolv[ing] all ambiguities and draw[ing]
all reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167
(2d Cir. 2014) (internal citations and quotation marks omitted). A court will grant summary
judgment “if 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). “[T]he burden is upon
the moving party to demonstrate that no genuine issue respecting any material fact exists.” Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994). However, this
burden “may be discharged by . . . pointing out . . . that there is an absence of evidence to support
the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Personal injury claims resulting from car accidents are governed by New York’s No-Fault
Insurance Law, N.Y. Ins. Law § 5101 et seq. The law is intended “to weed out frivolous claims
and limit recovery to significant injuries” in order to help contain the cost of no-fault automobile
insurance in New York. Toure v. Avis Rent A Car Sys., Inc., 774 N.E.2d 1197, 1199 (N.Y. 2002).
2 Where, as here, liability for the accident is not at issue, to prevail in a personal injury claim under
the No-Fault Law, “a plaintiff is required to present competent, non-conclusory expert evidence
sufficient to support a finding” that (1) “the alleged injury is ‘serious’ within the meaning of
Insurance Law § 5102(d),” and (2) “the injury was proximately caused by the accident at issue.”
Carter v. Full Service, Inc., 815 N.Y.S.2d 41, 43 (App. Div. 2006). An injury is “serious” if it
falls into one of nine enumerated categories. N.Y. Ins. Law § 5102(d). At issue in this case are
three of those categories: (1) “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,” commonly referred to as 90/180 day injuries; (2) a “permanent consequential
limitation of use of a body organ or member”; and (3) a “significant limitation of use of a body
function or system.” Id. We refer to the latter two categories of injury as “long-term serious
injuries.” We agree with the district court that there is an absence of evidence showing that Flores
suffered a 90/180 day injury or long-term serious injury as a result of the accident.
First, there is an absence of evidence supporting Flores’s claim of a 90/180 day injury.
Flores herself testified that she returned to work one day after the accident and was able to continue
to complete some household tasks immediately following the accident. At most, the record reveals
“slight curtailment” of Flores’s daily routine in the first six months after the accident, which is
insufficient to create a prima facie case of a 90/180 day injury as required to survive summary
judgment. See Licari v. Elliott, 441 N.E.2d 1088, 1091 (N.Y. 1982).
Second, there is no material factual dispute as to whether Flores suffered a long-term
serious injury as a result of the accident. Flores’s claim as to her knee injury fails because she did
3 not submit any sworn physician affidavits relevant to her knee, as required to make a prima facie
case under the No-Fault law. See Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010). As
for Flores’s claims relating to her back and neck, both parties submitted sworn expert reports
finding that Flores had a diminished range of motion in her cervical and lumbar spine, which could
show a significant limitation. However, the defense expert Dr. Jared Brandoff’s sworn report
concluded that these injuries were the result of a “mild to moderate degenerative disease” and that
there was no evidence that Flores’ injuries were traumatic in origin. App’x 395–96. Dr. Brandoff
also opined that Flores was intentionally restricting her range of motion, noting that she had
displayed greater mobility when she was unaware that she was being observed, that she displayed
“‘break-away’ weakness” indicative of poor effort, and that it “would be supremely unlikely for
her to have symmetrically diminished ranges on both sides of her spine, in both the cervical and
lumbar regions, to more or less the same degree, this far out from her alleged accident.” App’x
839. In contrast, Flores’s expert, Dr. Andrew Cordiale, submitted a report which concluded in a
single sentence that “it is my professional and medical opinion with a reasonable degree of medical
certainty that [Flores’s] injuries are traumatic in origin and causally related to the motor vehicle
accident.” App’x 497. We agree with the district court that this conclusory statement, which failed
to provide any explanation for how Dr. Cordiale reached this conclusion based on the materials he
reviewed, was insufficient to create a material factual dispute as to the cause of Flores’s injury.
See Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008)
(noting that an “expert’s conclusory opinions” cannot carry a plaintiff’s burden on summary
judgment); Smith v. Gray, 2022 WL 1418973, at *2 (2d Cir. May 5, 2022) (summary order)
(affirming grant of summary judgment where plaintiff’s expert “report made no effort to explain
its causality conclusion or rebut the notion that [the] injuries were due to a preexisting condition”).
4 CONCLUSION
We have reviewed Flores’s remaining arguments and find them to be without merit. For
the foregoing reasons, we AFFIRM the judgment of the District Court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk