Welch v. Ayala
| Docket Number | 19 Civ. 3455 (NRB) |
| Decision Date | 22 August 2023 |
| Parties | DOUGLAS WELCH, Plaintiff, v. ROBERTO AYALA, THE TRUSTEES OF COLUMBIA UNIVERSITY, THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Douglas Welch (“Welch” or “plaintiff”) commenced this action on April 18 2019 to recover damages for personal injuries he purportedly sustained in a motor vehicle accident. See ECF No. 1 (the “Complaint” or “Compl.”). Before the Court is a motion for summary judgment brought by defendants Roberto Ayala (“Ayala”), a Columbia University Security Officer whose car struck plaintiff's vehicle; The Trustees of Columbia University; and the Trustees of Columbia University in the City of New York (collectively “defendants”). See ECF No 41.
Defendants argue that they are entitled to summary judgment, because under New York's No-Fault Insurance Law: (i) Ayala did not cause plaintiff's claimed injuries; and (ii) plaintiff did not sustain “serious injuries.”[1] See ECF No. 41; ECF No. 42, Memorandum of Law in Support of Defendants' Motion for Summary Judgment (“Defs Br.”); ECF No. 48, Reply Memorandum in Support of Defendants' Motion for Summary Judgment (“Defs. Reply Br.”). By contrast, plaintiff counters that defendants failed to meet their prima facie burden with respect to causation and the seriousness of plaintiff's injuries, and that, in any event, there are triable issues of fact regarding both issues. See ECF No. 45, Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss (“Pl. Opp.”); see also ECF No. 46, Plaintiff's Response in Opposition to Defendants' Motion (“Plaintiff's Response” or “Pl. Response”). Having carefully reviewed the record, and for the reasons discussed herein, the Court grants defendants' motion for summary judgment.
BACKGROUND[2]
On June 24, 2017, Welch and Ayala and were involved in a motor vehicle accident around 5:25 A.M. while Ayala was on routine mobile patrol heading northbound on Old Broadway towards West 133rd Street. Pl. 56.1 ¶ 1.
The parties dispute the circumstances of the accident, though as discussed infra, those circumstances are not, in fact, truly subject to dispute. Plaintiff asserts in his 56.1 Counter Statement that he was standing outside of the driver-side door of his vehicle when the edge of his driver's side door was struck by Ayala's patrol vehicle. Pl. 56.1 ¶¶ 3, 6. The impact allegedly caused plaintiff to be “swung back,” at which point his back “slammed” into the edge of the door frame, his head “whipp[ed] back” and hit his vehicle, and he was forced to lunge into the car. Id. ¶¶ 3, 4-5, 7, 46; ECF No. 43-5, Wodarski Decl. Ex. E, March 2, 2020 Deposition of Douglas Welch (“Welch Tr.”) at 27, 29, 31-34. Defendants challenge plaintiff's recital. Crucially, a surveillance video recording of the incident does not show plaintiff hitting his back on the door frame with any force, sustaining any visible head injuries, or lunging into the vehicle. Defs. 56.1 ¶¶ 6-9; ECF No. 43-13, Wodarski Decl. Ex. M (the “Accident Video”).
Approximately 30 minutes after the accident, police officers arrived and took information from both drivers. Welch Tr. at 44-45. An accident report filed thereafter notes that “no injuries [were] stated” at the scene by either Welch or Ayala. ECF No. 43-11, Wodarski Decl. Ex. K, New York State Department of Motor Vehicles Police Accident Report (the “Police Accident Report”). Welch acknowledges that he did not ask the responding officers to call him an ambulance, nor did the officers offer to call him an ambulance. Welch Tr. at 45-48. Plaintiff also did not call himself an ambulance, seek medical assistance at the scene, or seek medical assistance at all on the day of the accident. Id. Instead, plaintiff waited a few hours for his car to be towed, after which he went back upstairs to his wife's apartment. Id. at 46-47.
Plaintiff initially testified that he sought care at Lawrence Hospital in Bronxville the day after the accident. Welch Tr. at 47-48. However, plaintiff later admitted in his 56.1 Counter Statement that he actually first sought care at Lawrence Hospital three days after the accident, where he was “treated and released.” Pl. 56.1 ¶ 16; Welch Tr. at 49.
Within nine days of the accident, on July 3, 2017, plaintiff returned to his job as a parking productions assistant (“PPA”) at CBS Studios. See ECF No. 43-12, Wodarski Decl. Ex. L, CBS Employment Records (the “CBS Employment Records”). Welch did not miss any days of work, because at the time of the accident, he was on a scheduled “hiatus” from his job as CBS Studios “reset” during a “break to get ready for the next season” of shows. Welch Tr. at 73-74. Plaintiff testified that he typically worked 90-100 hours per week, Welch Tr. at 9-14, and upon returning to work, records obtained from CBS studios show that plaintiff worked between 70.5-126 per week over the following 8 weeks. See CBS Employment Records. Those records also showed that plaintiff worked a total of 542.3 hours between July 3, 2017 and August 3, 2017 and worked 750.8 hours between August 30, 2017 through December 2017, for a total of 1,293.1 hours between July 3, 2017 and the end of December 2017. Id.
Plaintiff initiated physical therapy eighteen days after the accident, which he attended 48 times over the following thirteen months. Defs. 56.1 ¶ 17; ECF No. 46-7, Ex. G to Pl. Response, Affirmation of Douglas Welch (“Welch Aff.”) ¶ 7. However, plaintiff voluntarily ceased attending physical therapy after September 11, 2018, Welch Aff. ¶ 7.[3]
Twenty-one days after the accident, Welch underwent an MRI of his lumbar spine without contrast at Lenox Hill Radiology. Pl. 56.1 ¶ 18; Pl. Response at 4. This was the only MRI of plaintiff's back taken in close proximity to the accident. See Pl. Response. Plaintiff does not dispute that those images (the “MRI Images”) showed:
severe spinal stenosis at L4-5 due to facet arthritis with facet and ligamentum flavum hypertrophy.[4] At L5-S1 there was severe facet arthropathy associated with grade 1 spondylolisthesis and bilateral foraminal impingement.[5] There was some loss of signal over the spine due to the plaintiff's large body habitus.[6]
Pl. 56.1 ¶ 18.[7] With particular respect to plaintiff's “body habitus,” he stated in his deposition that his height was 5'7 and weight was 317 pounds on the date of the accident. Welch Tr. at 63.
After his initial MRI in July of 2017, plaintiff sought treatment from three licensed doctors through early February of 2019, each of whom submitted affirmations, which, according to plaintiff, demonstrate that his injuries are serious and causally related to the accident.
First, Dr. Rafael Abromov, D.O. (“Dr. Abromov”), a back pain specialist, examined Welch on July 10, 2017, January 8, 2018, February 26, 2018, April 30, 2018, September 17, 2018, and December 3, 2018. See ECF No. 46-3, Ex. C to Pl. Response, Affirmation of Dr. Rafael Abromov, D.O. (“Abromov Aff.”). Dr. Abramov writes that plaintiff's range of motion of the lumbar spine was limited, and plaintiff suffered from tenderness in his lumbar spine and persistent pain. Id. ¶¶ 4-22. Moreover, Dr. Abramov reviewed the MRI Images and determined -- as defendants' doctors also did -that plaintiff suffered from spondylolisthesis in the lumbar region. Id. ¶ 8. Dr. Abromov further concluded, without explanation, that Welch's treatment was “causally related to the motor vehicle accident of June 24, 2017” and recommended surgery. Id. ¶ 24. However, he also discussed “lifestyle modifications and weight loss” with plaintiff. Id. ¶ 23. Welch acknowledges that he was advised to lose weight, because “having a lot of weight in the stomach area can also effect [sic] your back, [your] core effects [sic] your back.” Welch Tr. at 63.
Second, plaintiff saw Dr. Boleslav Koharskyy, M.D. (“Dr. Koharskyy”), a pain management specialist who examined Welch four times between January 30, 2018 and September 27, 2018 and reached similar conclusions. See ECF No. 46-5, Ex. E to Pl. Response, Affirmation of Dr. Boleslav Koharskyy, M.D. (“Koharskyy Aff.”)[8]He agrees that the MRI Images revealed “severe spinal stenosis,” which he states was caused by “facet disease,”[9] and implies that this condition existed prior to the accident in noting that plaintiff's condition was made “significantly wo r s e [ ]” by the accident. Koharskyy Aff. ¶¶ 3, 5, 6, 9, 12, 14 (emphasis added). Dr. Koharskyy also recommended epidural steroid injections as treatment, which plaintiff underwent on May 17, 2018 and September 27, 2018. Id. ¶¶ 12, 17.
Third plaintiff saw Dr. Angel Macagno (“Dr. Macagno”), an orthopedic surgeon who examined him twice, first on November 7, 2017 and again on February 5, 2019. See ECF No. 46-4, Ex. D to Pl. Response, Affirmation of Dr. Angel Macagno, M.D. (“Macagno Aff.”) ¶¶ 3-8. After outlining plaintiff's subjective reports of pain and his range of motion limitations and reviewing the MRI Images, Dr. Macagno concluded that, consistent with defendants' description of the MRI Images, plaintiff suffered from: spondylolisthesis in the lumbar region; spinal stenosis in the lumbar region; and low back pain, as well as radiculopathy in the lumbar region. Id. ¶ 5. In his affirmation -- and without further explanation -- Dr. Macagno wrote that his “problem[s]” (presumably the above-referenced medical conditions) were “causally related to the [accident],” and “the treatment provided to Mr. Welch was medically necessary and causally related to the motor vehicle accident of June 24, 2017.” Id. ¶¶ 5, 9. Last, Dr. Macagno noted...
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