Manzi v. Davey Tree Expert Co.

977 F. Supp. 2d 150, 2013 WL 5530677, 2013 U.S. Dist. LEXIS 144065
CourtDistrict Court, E.D. New York
DecidedSeptember 30, 2013
DocketNo. 10-CV-3938 (DLI)(SMG)
StatusPublished
Cited by4 cases

This text of 977 F. Supp. 2d 150 (Manzi v. Davey Tree Expert Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manzi v. Davey Tree Expert Co., 977 F. Supp. 2d 150, 2013 WL 5530677, 2013 U.S. Dist. LEXIS 144065 (E.D.N.Y. 2013).

Opinion

OPINION AND ORDER

DORA L. IRIZARRY, District Judge.

This action arises from a motor vehicle accident between Joseph Manzi (“Plaintiff’) and Gary McBride (“McBride”). Specifically, Plaintiff alleges that, on April 30, 2010, McBride negligently collided into Plaintiffs vehicle and caused Plaintiff to sustain serious injuries within the meaning of Section 5102(d) of the New York State Insurance Law (the “No-Fault Law”). Plaintiff seeks recovery from McBride and McBride’s employer, Davey Tree Expert Company (“Davey Tree,” and collectively with McBride, “Defendants”), with Davey Tree and McBride, in turn, asserting cross-claims against each other for indemnification and contribution. (See generally Am. Compl., Docket Entry No. 11; Answer, Docket Entry No. 12; Answer and Cross-CL, Docket Entry No. 14.) Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking dismissal of the amended complaint and cross-claims on the basis that Plaintiff has not sustained a serious injury as defined by Section 5102(d). (Mem. of Law in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Docket Entry No. 33-12; Deck in Supp. of Mot. for Summ. J., Docket Entry No. 33-18.) Plaintiff opposes. (Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Mem.”), Docket Entry No. 33-17.) For the reasons set forth below, Defendants’ motion for summary judgment is granted and the action is dismissed in its entirety with prejudice.

BACKGROUND

In responses to interrogatories, Plaintiff claimed he suffered the following injuries from the April 30, 2010 accident: (1) right knee injury, which included internal derangement and meniscal tear, requiring arthroscopic surgery; and (2) back and spinal injuries in the form of a herniated disc at L5-S1, protruding disc at C3-C4, and myofascial pain of the cervical and lumbar spine.1 (Affirmation in Supp. Ex. [153]*153E.) Summaries of the relevant medical records and Plaintiffs deposition testimony are further detailed below.

I. Relevant Medical Records

On April 14, 2005, roughly five years before Plaintiffs accident with McBride, a car struck Plaintiff as he crossed a street intersection by foot. (Affirmation in Supp. Exs. T, U, W.) Plaintiff was thrown to the ground upon on impact; he was immediately taken from the scene to the emergency room by emergency medical services. (Id. Ex. U.) Medical records indicate that Plaintiff suffered a lumbar spine sprain and complained of persistent back pain, and had mild to moderate decrease in range of motion of his lumbar spine. (Id.)

On April 30, 2010, Plaintiff and McBride were involved in a motor vehicle accident near the intersection of 88th Street and Myrtle Avenue in Queens, New York. This time, however, Plaintiff did not seek medical treatment on the day of the accident, but instead went home to try to relax. (Id. Ex. G at 51.) Plaintiff first sought medical treatment on May 2, 2010, two days after the accident, at Forest Hills Hospital emergency room. (Id. Ex. M.) Medical records from that initial visit indicate that Plaintiff complained of pain in his neck, back, and left knee; the records, however, make no mention of pain or injury in his right knee. (Id.) Plaintiff was discharged from the emergency room that same day and prescribed Percocet. (Id.)

On May 10, 2010, Plaintiff visited Dynasty Medical Center, P.C. and was consulted by Dr. Ramkumar Panhani, whose notes from that day indicate that Plaintiff complained of headaches, neck pain, left shoulder pain, low back pain radiating into the left ankle, and left knee pain. (Id. Ex. N.) Dr. Panhani’s notes also state that Plaintiff had tenderness in the lumbar spine on palpation, tenderness of the paravertebral muscles, positive straight leg raising at 60 degrees, and reduced flexion, extension and squatting. (Id.) The notes further state that Plaintiff had decreased range of motion and pain in the left knee; however, they make no mention of any issues with Plaintiffs right knee. (Id.) Dr. Panhani recommended that Plaintiff have an ultrasound of the cervical and lumbar spine, as well as an MRI scan of the brain, left knee, and left shoulder. (Id.)

On May 20, 2010, Plaintiff visited McGuire Medical P.C. and was examined by Dr. Lauretta Grzegorczyk. (Id. Ex. O.) Dr. Grzegorczyk’s report indicates that Plaintiffs chief complaints were headaches, left neck and shoulder pain, lower back pain, and intermittent left knee pain. (Id.) This report, too, does not mention medical issues with Plaintiffs right knee. (Id.) Dr. Grzegorczyk indicated that Plaintiff had “moderate” restrictions on flexion, extension rotation, and side bending, and she diagnosed, inter alia, sprain in the cervical and lumbosacral muscles and ligaments and left knee sprain. (Id.) Dr. Grzegorczyk also recommended supervised physical therapy three to four times a week, as well as x-rays of the shoulders and knees, and MRIs of the brain, cervical spine, and lumbar spine. (Id.) Dr. Grzegorczyk opined that “the prognosis of [Plaintiffs] condition in regard to a full and complete recovery is good, but is difficult to determine at this time. Additional diagnostic tests may be ordered to deter[154]*154mine the full exten[t] of the injury, which will lead us to the final decision regarding this patient’s prognosis.” (Id.)

On May 24, 2010, Plaintiff had x-rays taken of his cervical spine, lumbosacral spine, left shoulder, and left knee. (Id. Ex. P.) According to Dr. Steve Losik, the x-rays of the lumbosacral spine, left shoulder, and left knee revealed no acute or displaced fractures or dislocations. (Id.) Additionally, Dr. Losik opined that the x-rays of the cervical spine showed no acute fractures of subluxations, but did show straightening of the cervical lordosis, which he indicated may represent pain and/or muscle spasm in an appropriate clinical setting. (Id.)

During May 2010 and June 2010, Plaintiff regularly attended physical therapy. (Id. Ex. O.) Records from Plaintiffs physical therapy sessions on May 21, 2010, May 22, 2010, and May 24, 2010 indicate that Plaintiff complained of pain in his left knee, lower back, and neck; however, there is no indication that Plaintiff complained of right knee pain in those sessions. (Id.) Notes from a later physical therapy session on May 26, 2010 indicate that Plaintiff complained, for the first time, of bilateral knee pain. (Id.)

On June 1, 2010, Plaintiff visited Dr. Winston Tapper and underwent an electromyography and nerve conduction velocity report on his lower extremities. (Id. Ex. Q.) Dr. Tapper interpreted the results of the test and opined that Plaintiffs lower extremities presented a “normal study,” and that there was no evidence of radiculopathy or peripheral neuropathy. (Id.)

On June 17, 2010, Dr. Joseph Paul, an orthopedic surgeon, examined Plaintiff. (Id. Ex. R.) Dr. Paul’s examination noted that Plaintiff complained of pain in the lower back and weakness of the right knee. (Id.) With respect to the lumbar spine, Dr.

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977 F. Supp. 2d 150, 2013 WL 5530677, 2013 U.S. Dist. LEXIS 144065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manzi-v-davey-tree-expert-co-nyed-2013.