Bass v. Hout

Background

Judelka Bass alleged that David Hout, who was driving a truck connected with Admiral Merchants Motor Freight, Inc., crossed into her lane on the Cross Bronx Expressway in November 2012 and struck her vehicle. Bass alleged that the accident injured her left shoulder. She later sued Hout and Admiral for damages.

The defendants moved for summary judgment, asking the court to resolve the case without a trial. They argued that Bass had not suffered a “serious injury,” which New York Insurance Law requires before a person may recover damages for certain motor-vehicle injuries.

Bass received medical treatment after the accident. Her orthopedist, Dr. Jeffrey Cohen, repeatedly measured limited movement in her left shoulder, prescribed treatment, and provided notes stating that she could not return to work because of the accident. Bass later underwent arthroscopic shoulder surgery. The parties disputed what the surgery and a later magnetic-resonance-imaging scan showed. The defendants’ medical expert, Dr. Gregory Montalbano, opined that Bass likely did not sustain a traumatic or permanent shoulder injury from the accident and suggested that her condition could instead relate to diabetes or obesity. Cohen disagreed and attributed the shoulder problems to the accident.

Legal standard

Summary judgment is appropriate only when the evidence shows no genuine dispute about a fact that could affect the outcome. If such a dispute exists, a jury must resolve it rather than the judge on summary judgment.

Under New York Insurance Law § 5102(d), the relevant categories of “serious injury” included a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system, and an injury that prevented Bass from performing substantially all of her usual and customary daily activities for at least 90 days during the first 180 days after the injury. The last category is commonly called the “90/180 standard.”

Court’s analysis

For the permanent-consequential and significant-limitation categories, the defendants presented Montalbano’s sworn opinion that Bass’s shoulder condition was not caused by the accident and likely did not exist as an accident-related injury. The court found that this evidence established the defendants’ initial showing for summary judgment.

The court nevertheless found that Bass presented enough evidence to create genuine factual disputes. Cohen had objectively measured continuing losses in shoulder range of motion despite years of treatment. He also described muscle spasms, loss of feeling in Bass’s arm, and a continuing limitation that could affect her daily activities. The disputed scan and surgical evidence also supported Bass’s position. The court concluded that a jury could find the limitation more than minor, significant, and likely to continue. It therefore denied summary judgment on these issues.

For the 90/180 standard, the court found that the defendants’ expert report did not address Bass’s condition during the 180-day period after the accident. The defendants therefore did not make their initial showing on this issue. In addition, Bass presented evidence that Cohen gave her several work-disability notes and attributed her inability to return to work to the accident. The defendants submitted no medical or other evidence negating Cohen’s testimony. The court therefore denied summary judgment on the 90/180 issue as well.

Disposition

Judge Edgardo Ramos denied the defendants’ motion for summary judgment. The court directed the parties to appear for a status conference on January 8, 2020, and directed the clerk to terminate the motion.