Ciappetta v. Snyder

NOEL CIAPPETTA, Plaintiff, v. BARRY SNYDER, PGD IV LLCand PGT TRUCKING, INC., Defendants.

CV 15-4427 (JMA)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 22, 2021

REPORT AND RECOMMENDATION

LINDSAY, Magistrate Judge:

Plaintiff Noel Ciappetta ("Plaintiff") brings this diversity action against Defendants Barry Snyder, PGD IV LLC and PGT Trucking, Inc. (collectively "Defendants") for injuries sustained as a result of a motor vehicle accident occurring on November 19, 2014 in Nassau County. Before the Court, on referral from Judge Azrack, is Defendants' motion for summary judgment. ECF No. 87. Defendants move for summary judgment on the grounds that Plaintiffs has failed to present evidence of a "serious injury" as required by § 5104(a) and defined in § 5102(d) of the New York Insurance Law, commonly referred to as the "No-Fault" Law. For the reasons set forth below, the undersigned respectfully recommends that Defendants' motion be granted.

BACKGROUND

I. Procedural History

Plaintiff originally filed the complaint in this action in New York State Court on April 24, 2015. At the time the lawsuit was commenced Plaintiff was represented by counsel. Defendants filed a verified answer to the complaint in state court on June 15, 2015. On June 17, 2015, the action was removed to the United States District Court for the Southern District of New York. By Order dated June 25, 2015 this matter was transferred to the United States District Court for the Eastern District of New York, on the basis of improper venue. Plaintiff's counsel moved to withdraw as counsel on the grounds that Plaintiff had threatened him with bodily harm, and the motion was granted on May 16, 2017. ECF No. 18.

On May 21, 2020, Defendants moved for summary judgment. Defendants argue that it is impossible for a rational jury to find that Plaintiff sustained a "serious injury" as defined by Insurance Law § 5102 and therefore, Plaintiff's complaint should be dismissed. In support of the motion Defendants submit the Declaration of Thomas V. Backis, dated March 5, 2020, attaching over 800 pages of medical records ("Backis Dec."). In response, Plaintiff filed three letters on ECF on March 9, 2020, April 30, 2020 and May 6, 2020. These letters do not respond to Defendants' arguments that Plaintiff did not sustain a "serious injury" as defined by New York Insurance Law §5102(d) and fail to provide any counter evidence in opposition to Defendants' motion for summary judgment. Indeed, Plaintiff contends that Defendants' evidence in support of summary judgment is "the same bullcrap no details involving me almost getting killed or me going on fire and ending my life at 62 years old." ECF No. 83. Plaintiff also contends that he sent medical records to Defendants on March 5, 2020, the same day he was served with Defendants' motion for summary judgment. Id. Defendants have submitted a letter in reply in lieu of a formal reply memorandum, indicating they are not in receipt of any additional medical records of Plaintiff. ECF No. 93.

By Order dated September 30, 2020, Judge Azrack referred the motion to the undersigned.

II. Local Rule 56.1 and Pro Se Litigants

Plaintiff has failed to provide a proper opposition to Defendants' motion for summary judgment. "Local Civil Rule 56.1(a) requires the moving party to submit a 'short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contendsthere is no genuine issue to be tried.'" Allah v. Annucci, No. 16-CV-1841, 2020 U.S. Dist. LEXIS 101590, 2020 WL 3073184, at *11 (S.D.N.Y. June 10, 2020) (quoting Local Civ. R. 56.1(a)). "The nonmoving party, in turn, must submit 'a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.'" Id. (quoting Local Civ. R. 56.1(b)). "Pro se litigants who receive proper notice pursuant to Local Civil Rule 56.2 are not excused from satisfying their obligations under Local Civil Rule 56.1." Santagata v. Diaz, No. 17-CV-3053, 2020 U.S. Dist. LEXIS 55047, 2020 WL 1536347, at *4 (E.D.N.Y. Mar. 30, 2020) (quoting Cain v. Esthetique, 182 F. Supp. 3d 54, 63 (S.D.N.Y. 2016) (citation omitted), aff'd sub nom. Cain v. Atelier Esthetique Inst. of Esthetics Inc., 733 F. App'x 8 (2d Cir. 2018)). "A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible." T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).

Here, Defendants filed and served their Statement pursuant to Rule 56.1, and, filed and served a statement notifying Plaintiff of the potential consequences of not responding to the motion, as required by Local Rule 56.2. Plaintiff did not provide the required 56.1 Statement. Plaintiff's only response is unsworn and contains no factual allegations supported by admissible evidence in the record to refute Defendants' version of purportedly undisputed facts. Where a party opposing a motion for summary judgment fails to submit a proper Counterstatement, the facts set forth in a moving party's Rule 56.1 statement are generally deemed to be admitted, and in this case, the Court has applied that rule. See Brandever, 2014 U.S. Dist. LEXIS 36844, 2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did not submit a Rule 56.1statement in response to the defendant's statement of facts, "there [were] no material issues of fact"); Anand v. New York State Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 U.S. Dist. LEXIS 126925, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29, 2013) (same). However, mindful of the fact that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules" see Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001), the undersigned has also undertaken a comprehensive, independent review of the record. As such, in instances where the Court has found no support for Defendants' factual assertions, those averments have been disregarded. Nonetheless, the facts that follow are construed in the light most favorable to the non-moving party, except as otherwise noted. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).

III. Factual Background

Plaintiff is seeking to recover for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on the Long Island Expressway on at approximately 5:30 a.m. on November 19, 2014. Def. Local Rule 56.1 Stmt. at ¶ 2.

A. The Parties

Plaintiff Noel Ciappetta, was 62 years old at the time of the accident. He has not been employed since 1992 and has been receiving Social Security Disability as a result of an injury received in an automobile accident. Id at ¶¶ 1, 29, 30. Defendant Barry Snyder is an employee of Defendant PGT Trucking, Inc. and was the operator of a vehicle involved in the accident with Plaintiff. Comp. ¶16, ECF No. 1. Defendant PGD IV LLC is a Pennsylvania limited liability company. Def. Ans. ¶ 3, ECF No. 1. Defendant PGT Trucking, Inc. is foreign corporation. Id. at ¶ 4.

B. Plaintiff's Prior Accidents and Social Security Disability Claim

Plaintiff testified that he sustained a "pinched nerve" in his back prior to the subject accident. Id at ¶ 25. Plaintiff testified that he had fallen off a ladder while working as a roofer in the late 1980's. The ladder had slid out and he fell approximately 4-5 feet to the ground. According to Plaintiff, he did not sustain an injury to his back or neck as a result of that accident. Id at ¶ 26.

In addition, Plaintiff started receiving Social Security Disability following a motor vehicle accident in 1992, when a vehicle he was operating was sideswiped by another vehicle. Id at ¶ 27. Plaintiff went to our Lady of Mercy Hospital on either the same day or next day following the 1992 accident. Id at ¶ 28. Plaintiff testified that he did not go to the hospital because he was experiencing pain, but because that's what his lawyer told him to do. Id at ¶ 29.

Plaintiff received treatment to his back from a Dr. Robert Fogelman "for a couple of months" following the 1992 accident. Id at ¶ 30. Plaintiff also treated with a doctor in Stuart, Florida in connection with his 1992 accident. Plaintiff treated with the doctor in Florida 2-3 times per week for approximately one year. Id at ¶ 31. Plaintiff filed a lawsuit in connection with the 1992 accident claiming that he had a "pinched nerve" as a result of the 1992 accident. Id at ¶¶ 33, 34. Plaintiff filed a claim for social security disability benefits in 1992 due to a "pinched nerve" in his back. Id at ¶ 36. Plaintiff testified that "[a]fter my settlement [of the 1992 lawsuit], I started playing basketball, doing everything normally, doing everything normally before this accident." Id at ¶ 35. Plaintiff testified that the pinched nerve did not prevent him from doing anything as of the time that he filed the claim for Social Security Disability benefits. Id at ¶ 37.

C. Plaintiff's Medical Treatment for This Accident

Plaintiff alleges that he sustained an aggravation of the pre-existing injury to the lumbar spine as a result of the accident, and multiple disc herniations and bulges in the cervical and lumbar regions of his spine. Def. Local Rule 56.1 Stmt. at ¶ 3. Plaintiff went from the accident scene to Syosset Long Island Jewish Medical Center by ambulance; he was there for approximately two hours. Id at ¶ 4. Plaintiff also went to see an attorney on the same date of the accident, and the attorney referred Plaintiff to spinal surgeon Dr. Aaron Rovner. Id at ¶ 5.

1. Physical Therapy

Plaintiff started receiving physical therapy immediately after the accident. Id at ¶ 6. Plaintiff's records from Physical Medicine and...