Preview
FILED: ERIE COUNTY CLERK 01/18/2023 04:33 PM INDEX NO. 817375/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/18/2023
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
___________________________________
KAYLA FOX
Plaintiff,
v.
Index No.: 817375/2019
REBECCA SCHMITT and
KEVIN J. SCHMITT,
Defendants.
___________________________________
STATEMENT OF MATERIAL FACTS
Pursuant to Rule 202.8-g of the Uniform Rules of the Supreme Court & County Court,
the defendants, Rebecca Schmitt and Kevin J. Schmitt, submit this Statement of Material Facts in
support of their motion of summary judgment.
Each factual statement below is followed by a citation to an exhibit attached to the
Affirmation of Elizabeth A. Bruce, Esq., sworn to on January 18, 2023, filed in conjunction with
this motion.
1. Before the accident, plaintiff would go to work, go to the gym, eat and sleep. See
Exhibit C, p. 73.
2. She would also help take care of her siblings, cook, and clean. See Exhibit C, p. 85-
86.
3. When she hung out with her boyfriend, they would eat and watch tv. See Exhibit C, p.
87.
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FILED: ERIE COUNTY CLERK 01/18/2023 04:33 PM INDEX NO. 817375/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/18/2023
4. She did not go to the gym within the first 2 months of the accident because the doctor
told her not to, but she was not given any type of note. See Exhibit C, p. 84.
5. Within two weeks of the accident, she was back to work. See Exhibit C, p. 83-84.
6. Her mother had to help her dress and draw a bath for the first 2 weeks after the
accident. See Exhibit C, p. 84.
7. Her days currently consist of going to work, showering, and sleeping. See Exhibit C,
p. 92.
8. When hanging out with her boyfriend, they lay in bed and watch Netflix. See Exhibit
C, p. 93.
9. Sometime after the accident, she was on unemployment and certified weekly that she
was ready, willing, and able to work. See Exhibit C. p. 23-24.
10. Dr. John J. Cambaerei, performed an independent medical examination of the
plaintiff and opined that there would be no reasons for the plaintiff to have any heavy
lifting restrictions after the first six months, and after six weeks the plaintiff would
have had no limitations on her ability to do housework. See Exhibit D, p. 15.
11. Dr. Cambareri also opined that the findings on imaging studies in the plaintiff’s
cervical spine, thoracic spine, lumbar spine, knees, and hips are unrevealing for any
serious permanent musculoskeletal injury. See Exhibit D, p. 15.
12. Dr. Cambareri found that her subjective complaints outweigh the subjective findings,
and that on physical examination there were some nonphysiologic findings and
evidence of symptom magnification. See Exhibit D, p. 15.
13. Further, Dr. Cambareri opined that any orthopedic injuries from the subject accident
have resolved, and that there is no evidence of any current or continuing disability or
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FILED: ERIE COUNTY CLERK 01/18/2023 04:33 PM INDEX NO. 817375/2019
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permanency from the injuries sustained from the subject accident. See Exhibit D, p.
16.
14. While reviewing her imaging studies, Dr. Cambareri found no evidence of the
plaintiff suffering from any fracture due to the subject accident. See Exhibit D, p. 11-
12.
DATED: January 18, 2023
Buffalo, NY
___________________________________
Elizabeth A. Bruce, Esq.
LAW OFFICES OF VICTOR M. WRIGHT
Attorneys for Defendants Schmitt
3815 California Road, Suite Two
Orchard Park, NY 14127-2239
(716) 667-1681
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Preview
FILED: ERIE COUNTY CLERK 01/18/2023 04:33 PM INDEX NO. 817375/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/18/2023 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE ___________________________________ KAYLA FOX Plaintiff, v. Index No.: 817375/2019 REBECCA SCHMITT and KEVIN J. SCHMITT, Defendants. ___________________________________ STATEMENT OF MATERIAL FACTS Pursuant to Rule 202.8-g of the Uniform Rules of the Supreme Court & County Court, the defendants, Rebecca Schmitt and Kevin J. Schmitt, submit this Statement of Material Facts in support of their motion of summary judgment. Each factual statement below is followed by a citation to an exhibit attached to the Affirmation of Elizabeth A. Bruce, Esq., sworn to on January 18, 2023, filed in conjunction with this motion. 1. Before the accident, plaintiff would go to work, go to the gym, eat and sleep. See Exhibit C, p. 73. 2. She would also help take care of her siblings, cook, and clean. See Exhibit C, p. 85- 86. 3. When she hung out with her boyfriend, they would eat and watch tv. See Exhibit C, p. 87. 1 of 3 FILED: ERIE COUNTY CLERK 01/18/2023 04:33 PM INDEX NO. 817375/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/18/2023 4. She did not go to the gym within the first 2 months of the accident because the doctor told her not to, but she was not given any type of note. See Exhibit C, p. 84. 5. Within two weeks of the accident, she was back to work. See Exhibit C, p. 83-84. 6. Her mother had to help her dress and draw a bath for the first 2 weeks after the accident. See Exhibit C, p. 84. 7. Her days currently consist of going to work, showering, and sleeping. See Exhibit C, p. 92. 8. When hanging out with her boyfriend, they lay in bed and watch Netflix. See Exhibit C, p. 93. 9. Sometime after the accident, she was on unemployment and certified weekly that she was ready, willing, and able to work. See Exhibit C. p. 23-24. 10. Dr. John J. Cambaerei, performed an independent medical examination of the plaintiff and opined that there would be no reasons for the plaintiff to have any heavy lifting restrictions after the first six months, and after six weeks the plaintiff would have had no limitations on her ability to do housework. See Exhibit D, p. 15. 11. Dr. Cambareri also opined that the findings on imaging studies in the plaintiff’s cervical spine, thoracic spine, lumbar spine, knees, and hips are unrevealing for any serious permanent musculoskeletal injury. See Exhibit D, p. 15. 12. Dr. Cambareri found that her subjective complaints outweigh the subjective findings, and that on physical examination there were some nonphysiologic findings and evidence of symptom magnification. See Exhibit D, p. 15. 13. Further, Dr. Cambareri opined that any orthopedic injuries from the subject accident have resolved, and that there is no evidence of any current or continuing disability or 2 of 3 FILED: ERIE COUNTY CLERK 01/18/2023 04:33 PM INDEX NO. 817375/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 01/18/2023 permanency from the injuries sustained from the subject accident. See Exhibit D, p. 16. 14. While reviewing her imaging studies, Dr. Cambareri found no evidence of the plaintiff suffering from any fracture due to the subject accident. See Exhibit D, p. 11- 12. DATED: January 18, 2023 Buffalo, NY ___________________________________ Elizabeth A. Bruce, Esq. LAW OFFICES OF VICTOR M. WRIGHT Attorneys for Defendants Schmitt 3815 California Road, Suite Two Orchard Park, NY 14127-2239 (716) 667-1681 3 of 3