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FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E
NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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KELLEY PHILLIPS, Index No.: 21169/11
Plaintiff,
AFFIRMATION IN
- against - SUPPORT
DREW SWISS and MONTEFIORE MEDICAL CENTER,
Defendants.
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GAIL L. RITZERT, ESQ., an attorney duly admitted to practice law before the Courts
of the State of New York, hereby affirms the following, upon information and belief, pursuant to
CPLR §2106:
1. I am a Partner at the law firm of KIERNAN TREBACH LLP, counsel for the
Defendant, MONTEFIORE MEDICAL CENTER (the “Moving Defendant”), in the
above-entitled action. As such, I am fully familiar with the facts and circumstances as
set forth herein, the source of my knowledge being the file maintained by my office in
the course of handling this matter.
NATURE OF MOTION
2. Plaintiff, KELLEY PHILLIPS commenced the above-captioned action arising out of a
motor vehicle accident that occurred on June 3, 2010 at approximately 10:30 a.m. on
Bainbridge Avenue at East 211th Street, Bronx, New York.
3. As discussed in further detail below and in the accompanying Memorandum of Law,
the defendant, MONTEFIORE MEDICAL CENTER (hereinafter “the moving
defendant”) is respectfully submitting the instant motion seeking an Order (1) granting
summary judgment to the Moving Defendant, pursuant to CPLR §3212 and all claims
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against the Moving Defendant in the plaintiff’s Verified Complaint be dismissed on the
grounds that the plaintiff has not sustained a “Serious Injury” as defined by Insurance
Law §5102(d), and is thus barred from recovery under Insurance Law §5104; and (2)
for such other and further relief as this Court deems just and proper.
PROCEDURAL HISTORY
4. Plaintiff, KELLEY PHILLIPS (hereinafter “plaintiff”), commenced this action in
Supreme Court, Bronx County on or about May 24, 2013 against defendant, DREW
SWISS, for personal injuries allegedly sustained as the result of a motor vehicle
accident that occurred on or about June 3, 2010 at approximately 10:30 a.m. on
Bainbridge Avenue at E. 211th Street, Bronx, New York. A copy of the Summons and
Verified Complaint is annexed hereto as Exhibit “A”.
5. Without admitting any of the facts contained therein, in the Complaint plaintiff alleges
that on June 3, 2010 she was the driver and sole occupant of a 2000 Honda Civic Sedan
that was stopped on the westerly side of Bainbridge Avenue at its intersection with
211th Street, facing south, when she was rear-ended by defendant, Drew Swiss, who
was operating a Lexus motor vehicle during the course of his employment with moving
defendant. Id.
6. Pursuant to Court Order, Plaintiff served a Supplemental Summons and Verified
Amended Complaint, adding MONTEFIORE MEDICAL CENTER as defendant on or
about May 24, 2013. A copy of plaintiff’s Supplemental Summons and Verified
Amended Complaint is annexed hereto as Exhibit “B”.
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7. Defendant DREW SWISS joined issue with a Verified Answer to the Verified
Amended Complaint and Cross-Claims against the moving defendant on or about June
27, 2013. A copy of their Verified Answer with Cross-Claims is annexed hereto as
Exhibit “C”.
8. MONTEFIORE MEDICAL CENTER joined issue by filing a Verified Answer to the
Amended Complaint with Affirmative Defenses and Cross-Claims against DREW
SWISS on August 13, 2013. A copy of the Verified Answer is annexed hereto as
Exhibit “D”.
9. Simultaneously, the moving defendant filed their Reply to the Cross-Claims brought
forth by DREW SWISS. A copy of the Reply to Cross-Claims is annexed hereto as
Exhibit “E”.
10. Plaintiff served her Verified Bill of Particulars on or about March 27, 2014. A copy of
the Verified Bill of Particulars is annexed hereto as Exhibit “F”.
11. Plaintiff served a Supplemental Bill of Particulars on or about April 22, 2014. A copy
of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “G”.
12. Plaintiff served a Supplemental Bill of Particulars on or about May 16, 2014. A copy
of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “H”.
13. Plaintiff served a Supplemental Bill of Particulars on or about May 20 2014. A copy
of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “I”.
14. Plaintiff served another Supplemental Bill of Particulars on or about October 17, 2014.
A copy of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit
“J”.
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15. Plaintiff was deposed on October 22, 2014. A copy of her deposition transcript is
annexed hereto as Exhibit “K”.
16. Plaintiff served a Supplemental Verified Bill of Particulars on April 24, 2015. A copy
of the Supplemental Bill of Particulars is annexed hereto as Exhibit “L”.
17. Plaintiff continued her deposition testimony on July 26, 2016. A copy of this
deposition transcript is annexed hereto as Exhibit “M”.
18. On February 12, 2015, plaintiff appeared for a medical examination with Naunihal
Sing, M.D. a board-certified Neurologist. A copy of Dr. Singh’s report is annexed
hereto as Exhibit “N”.
19. On November 1, 2016, plaintiff appeared for a medical examination with Jeffrey
Brown, M.D. a board-certified Neuro-Psychiatrist. A copy of Dr. Brown’s report is
annexed hereto as Exhibit “O”
20. Plaintiff served a Supplemental Verified Bill of Particulars on April 27, 2018. A copy
of the Supplemental Bill of Particulars is annexed hereto as Exhibit “P”.
21. Plaintiff was further deposed on March 11, 2019. A copy of the deposition transcript
is annexed hereto as Exhibit “Q”.
22. Plaintiff served a Supplemental Verified Bill of Particulars on June 20, 2019. A copy
of the Supplemental Bill of Particulars is annexed hereto as Exhibit “R”.
23. On December 2, 2020 a virtual conference was held between counsel for all parties. At
which time the Court was informed that all depositions had been held, that the plaintiff
would be sending out new authorizations, that plaintiff was undergoing continued
medical care and treatment, and that plaintiff would be produced for a medical
deposition relating to the outstanding medicals. As such all parties agreed that all
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additional discovery would be completed by February 17, 2021. Consequently, the
matter was adjourned for a virtual status conference on March 18, 2021. A copy of the
December 2, 2020 Court Order is annexed hereto as Exhibit “S”.
24. Plaintiff was further deposed on February 17, 2021. A copy of her deposition testimony
is annexed hereto as Exhibit “T”.
25. Defendant, DREW SWISS, was deposed on July 25, 2012. A copy of the deposition
transcript is annexed hereto as Exhibit “U”
26. On March 19, 2021, a Court Order was issued requiring that plaintiff be examined by
a spinal surgeon and orthopedist between June 7, 2021 and June 18, 2021. A copy of
the Court Order is annexed hereto as Exhibit “V”.
27. Thereafter, Plaintiff served another Supplemental Verified Bill of Particulars on May
21, 2021. A copy of the Supplemental Verified Bill of Particulars is annexed hereto as
Exhibit “W”.
28. Pursuant to the March 19, 2021 Court Order, Plaintiff was served Notices of
Designation, on June 15, 2021, via electronic mail, pertaining to the examinations by
Andrew Bazos, M.D., board-certified orthopedic surgeon, Alexander Merkler, M.D.,
board-certified neurologist, and further examination by Jeffrey Brown, M.D., board-
certified neuro-psychiatrist. A copy of the Notices of Designation are annexed hereto
as Exhibit “X”.
29. Prior to the completion of the aforesaid medical examinations, plaintiff filed the Note
of Issue and Certificate of Readiness on June 25, 2021. A copy of the Note of Issue is
annexed hereto as Exhibit “Y”.
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30. On July 12, 2021 plaintiff’s counsel requested, via electronic mail, that the
aforementioned defense examinations be rescheduled to consecutive dates after August
9, 2021 in order to accommodate the plaintiff’s travel from her residence in Florida to
New York to attend the examinations. A copy of this email correspondence is annexed
hereto as Exhibit “Z”.
31. On August 18, 2021, Plaintiff appeared for a physical examination with Sheeraz
Qureshi, M.D., board-certified Orthopaedic Surgeon.
32. Plaintiff appeared for a physical examination with Andrew Bazos, M.D., board-
certified Orthopedic Surgeon on August 19, 2021. A copy of Dr. Bazos’ report is
annexed hereto as Exhibit “AA”.
33. On August 20, 2021, plaintiff appeared for a physical examination with Alexander
Merkler, M.D., board-certified Neurologist.
34. Plaintiff was scheduled to be examined by Dr. Brown, board-certified Neuro-
Psychiatrist, at her Florida residence on September 22nd and 23rd, 2021. In an electronic
mail correspondence on September 22, 2021, a representative from plaintiff’s counsel
admitted that their office failed to advise all parties and Dr. Brown that plaintiff would
no longer be available for said examinations. A copy of this email correspondence is
annexed hereto as Exhibit “BB”. This examination has not been completed.
35. To date, plaintiff’s counsel has not been cooperative in completing defense
examinations. As such this motion is timely.
36. This motion is timely filed following the filing of the Note of Issue.
FACTUAL SUMMARY
I. Plaintiff’s Verified Bill of Particulars
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37. In her Verified Bill of Particulars, plaintiff alleges that as a result of the subject
accident, she sustained the following injuries: disc herniation and annular tear of L5-
S1; degenerative disc increase of L5-S1; chronic neck pain and bilateral upper
extremity pain; mild bulging disc of C5-6, C6-7; mild disc degeneration of L5-S1;
closed head injury with post traumatic headaches and cognitive loss; chronic
debilitating back and occasional leg pain; on December 27, 2012 plaintiff under L3
through S1 lumbar discography via discogram with C-arm radiologic interpretation;
major depressive disorder; agoraphobia with panic disorder; generalized anxiety
disorder; anxiety state; aggravation of a pre-existing condition of the lumbar cervical
and thoracic spine; exacerbation of a latent disease and or condition of the lumbar,
cervical and thoracic spine; pain, tenderness, weakness, loss of function, loss of
strength, limitation and restriction of motion, and pain on motion; as well as injures
that have been aggravated, activated and/or precipitated any underlying hypertrophic,
degenerative, arthritic, circulatory, arterial, venous, and/or systemic conditions which
were asymptomatic prior to the accident complaint of. See Exhibit “F”.
38. Plaintiff claims she was confined to bed from June 3, 2010 through April 1, 2011, and
confined to home from June 3, 2010 through May 31, 2011 except for visits to the
necessary medical aid, treatment and attention. Id.
39. Plaintiff further claims that at the time of the subject accident she was employed as a
surgical resident at Jacobi Medical Center, and was a full time student prior to her
employment. Plaintiff alleges that she has been unemployed from the date of the
accident to present. Id.
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40. Four years after the date of loss, in multiple Supplemental Bill of Particulars served in
2014, plaintiff claimed lumbar disc herniations L4-S1; that on March 28, 2014 plaintiff
underwent L4-S1 spinal fusion; traumatic brain injury; psychiatric injury; anxiety
disorder, and depression; right knee vertical medial meniscal tear with radial extension,
irreparable; right knee discoid lateral meniscus; that on September 20, 2013 she
underwent right knee arthroscopy with medial meniscal debridement; right knee
arthroscopy with saucerization of the discoid lateral meniscus; aggravation of a pre-
existing condition of the right knee; and activation of a latent disease or condition of
the right knee; she underwent C6-7 prestige disc replacement and anterior cervical
discectomy with decompression of posterior disc osteophyte complexes C6-C7 on
August 15, 2014. See, Exhibits “F-J.”
41. In her Supplemental Bill of Particulars dated June 20, 2019, plaintiff asserts that nine
years after the date of losss she underwent the following surgical procedures: spinal
cord stimulator implant surgery on June 29, 2018; lumbar spine hardware removal
surgery on June 3, 2016; and cervical spine fusion surgery on November 13, 2015. See
Exhibit “R”.
42. In her Supplemental Bill of Particulars dated May 21, 2021, plaintiff claims eleven
years later, she underwent multiple trigger point injections in the plantar fascia of the
right and left feet, and that on July 28, 2020 plaintiff underwent right minimally
invasive sacroiliac fusion, and use of intraoperative fluoroscopy, use of the
intraoperative neuromonitoring, electromyography, somatosensory-evoked potential.
See Exhibit “W”.
II. Examination Before Trial of Plaintiff
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a. Plaintiff’s Testimony October 22, 2014
47. Plaintiff testified that the accident occurred on June 3, 2010 around 10:30 a.m. See
Exhibit “K” at 30. She alleges that the accident occurred on Bainbridge Avenue near
East 211th Street, Id. at 31. She alleges that she was at a stoplight on Bainbridge, a two-
way street, Id. at 33. She states that the time of the accident, her vehicle was equipped
with front air bags that did not deploy as a result of the accident. Id. at 37. Plaintiff
further alleges that when she approached the intersection of 211th Street her vehicle
was brought to a stop at a red traffic light. Eventually the light turned green and as she
was waiting for two cars ahead of her to go, she all of a sudden felt a hard knock from
behind.
48. She further alleges that as a result of the impact, her torso, neck and back went forward
and then rocked back. Both of her hands were on the steering wheel at the time of
impact Id. at 40-41.
49. Four photographs of the plaintiff’s vehicle were marked at the deposition. See Exhibit
“CC”
50. Plaintiff asserts that her rear-end bumper was detached at the accident scene, Id. at
49.
51. After the accident, plaintiff and the driver of defendant’s vehicle pull over to have a
conversation about whether the police and/or insurance companies were going to be
called, Id. at 51.
52. Plaintiff further testifies that the driver of defendant’s vehicle advised that he prefer
that she contact or get an estimate from Maaco, whom he had a contract with, and
because he worked as the Vice President of Finance at Montefiore Hospital, Id. at 52.
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53. Plaintiff further testifies that she did not feel pain in any portion of her body
immediately after the impact, Id.
54. She states that she did not feel pain as a result of the accident until she was on her way
to Maaco, at which time she felt pain to her neck and back that started progressing, Id.
at 54.
55. She testified that initially she wanted to call the police but after DREW SWISS stated
that he was the Vice President of Finance at Montefiore she was convinced she could
find him, Id. at 56.
56. She describes looking at the damage to her vehicle after the accident as “the rear
bumper dangling and damaged. The trunk was crunched. The right rear panel was
damaged,” Id. at 60. This description is belied by the photographs of plaintiff’s
vehicle.
57. Plaintiff testifies that she felt pain to her neck, lower back to her buttocks and both
shoulders, Id. at 68. Plaintiff went to the emergency room at Montefiore with chief
complaints of “severe neck, back, and bilateral shoulder pain with spasms…migraine
and I was hurting so bad that my quadriceps were even like in spasm and trembling”,
Id. at 68-69.
58. Plaintiff confirmed that she received an estimate of $2,000 to repair her vehicle. Id. at
70.
59. Plaintiff testifies that she walked to the emergency room which is across the street
from her apartment, Id. at 76.
60. Plaintiff testifies that she was involved in a prior motor vehicle accident in December
2008 in the Bronx, Id. at 77. In that accident she rear ended another vehicle on Bronx
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River Parkway. She was operating the same Honda vehicle at the time of this previous
accident. She asserts that she sustained injury as a result of the previous accident to
her “neck and mid back”, Id. at 80-81.
61. She testifies that as a result of the 2008 accident she went to Jacobi Hospital, but
cannot recall what days/weeks she went after the accident. She was on rotations when
the 2008 accident occurred, Id. at 86.
62. She testified that her complaints at Jacobi Hospital as to her neck were pain and
spasms. She had pain at her thoracic spine, lower back pain and bilateral shoulders.
She testified that she had spams at her shoulders and they performed diagnostic tests,
the result of same being Schmorl’s nodes, Id. at 88-89.
63. Plaintiff testified that upon discharge she was measured for a TLSO brace that goes
from the breasts down to the lumbosacral area, Id. at 96.
64. Plaintiff testified that she officially went on formal sick leave in August of 2010,
Id. at 110.
65. Plaintiff was no longer taking the medications or using the brace associated with the
2008 accident by June 2010, Id at 114.
b. Plaintiff’s Testimony July 26, 2016
66. Plaintiff testified that she underwent her breast augmentation surgery in 2006 with Dr.
Hochstein in Aventura, See Exhibit “M ” at 210.
67. Other than her breast augmentation surgery, plaintiff has not had any other cosmetic
surgery, Id at 212.
68. In a physician’s report prepared by Dr. Fulton, plaintiff’s “history of present illness”
states that “She was stopped a light when she was struck from behind at a fairly high
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rate of speed by a small SUV”. Plaintiff previously stated that she did not know the
speed of the vehicle, Id at 213.
69. Plaintiff never told Dr. Fulton about her third automobile accident that occurred before
the 2008 accident because “she had no problems after that accident”, Id at 214.
70. On a diagnostic report prepared by Dr. Fulton it says “I reviewed a stack of radiology
reports that describe various minor degenerative changes but no significant traumatic
issues”, Id at 220.
71. Plaintiff was diagnosed with fibromyalgia by Ann Lesak. She recalls she possibly
discussed this diagnosis with Dr. Bhat at Health First, Id at 221.
72. Plaintiff testified that she is relating the head injury she sustained on October 30, 2010
to November 1, 2010 to the subject accident. She is also asserting that the head injury
that she asserted she sustained in January of 2011 relates to the June 3, 2010 accident,
without any basis. Plaintiff never told any physician that those incidents were the result
of alcohol, even though she admitted sustained alcohol blackout pre-accident Id. at 225.
73. Plaintiff testified that she is refuting a note of August 1, 2011 from Health First that
states “She also reports that she has had two head traumas after drinking alcohol while
on a muscle relaxant passing out and hitting her head,” Id at 226.
74. Plaintiff testified and admitted that before the incident where she went to the hospital
on November 1, 2010 she had consumed alcohol at the same time she was taking
medications approximately 6 hours before, Id at 227.
75. Plaintiff testified that she went to the hospital in January of 2011 asserting a head
injury because she hit her head and fell to floor. She cannot recall what medications
she was taking at the time of the incident, Id. at 228.
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76. Plaintiff testified that she never refuted the physician’s note from Health First that the
7/23/2011 MRI takin at Holmes Regional was found to reveal mild degenerative disc
disease at L-5 and S-1 with some disc space narrowing at L-5, S-1, Id. at 230-231.
77. Plaintiff testified that she does not recall why she filled a prescription for Ambien in
February of 2010, prior to the date of accident. She further testified that she does not
recall being prescribed Prozac in 2009. She does not remember having the
prescription filled five times in 2009. She does not recall having the prescription for
Prozac filled in 2010 before the June 3, 2010 subject accident, Id. at 235-236.
78. Plaintiff testified that urinary issues are the result of the June 3, 2010 accident. She
does not recall having made any complaints prior to June 3, 2010 about urinary
hesitancy. She testifies that she does not recall having urinary hesitancy despite the
note in Dr. Gross’s report on January 18, 2010 which indicates that she has urinary
hesitancy, Id. at 237-238.
79. Plaintiff testified that she does not recall having urinary hesitancy problems for two
years despite a December 2010 physician’s note from Dr. Gross which indicates that
the onset of her urinary symptoms has been gradual and occurring on an intermittent
pattern for two years, Id. at 239.
80. Plaintiff testified that she was given the prescription for the cervical spine MRI that
was done at Gun Hill MRI in April 2010 by Dr. Renata Weber. She further testified
that Ms. Weber discussed the result of the MRI with her, that there was nothing
significant found, Id. at 241.
81. Plaintiff testified that she did not report to work June 3, 2010 before or after the
accident. She further testified that the indication in Montefiore’s records that
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indicates that she worked for at least four hours after the accident on June 3, 2010 is
inaccurate, Id. at 242.
82. Plaintiff testified that she may have returned to Florida for any period of time from
December 5, 2008 to December 31, 2010, Id. at 253.
83. Plaintiff testified that after the December 5, 2008 accident, she went on a cruise with
her mother in 2009 to Peru, Belize and Costa Rica. After the June 3, 2010 subject
accident, she went to Puerto Rico in 2014 with friends, Id. at 255.
84. Plaintiff testified that she does not recall not having any pain since the June 3, 2010
accident despite the fact that records from Dr. Schneeberger which reflect that she took
a vacation with a friend at which time she had no pain. She recalls taking a trip to
Monticello with a friend but cannot recall what year it was, Id. at 255.
85. Plaintiff testified that her father came after her with an ax when she was around eight
to ten years old. She blocked the memory of that incident until she recalled it in 2014
to 2015. She never told any of her health care providers in New York about the
incident. Plaintiff further testified that she put a lock on her door when she went to
medical school or when she came to visit her parents in Florida after medial school
because she was afraid of her father, Id. at 258.
86. Plaintiff is asserting PTSD as a result of the June 3, 2010 accident. When she did the
rotation through a psychiatric department or ward while she was in medical school.
While doing the rotation in the psychiatric unit she was instructed and taught that it
was important to find out and get a complete history from a patient to learn all the
events in the person’s life. She knew that when she spoke with her physicians, in
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particular with complaints of anxiety and stress, that it was important to tell them
about all the stress sources in her life, Id. at 259.
87. Plaintiff testified that she knows that a DSM-4 is an access used in psychiatry. She
used it while in medical school during the rotation through the psychiatric department.
She was not using the DSM-4 when she in six-week rotation even though she knew
that it was a resource a person could use for information on psychiatric disorders, Id.
at 261.
88. Plaintiff never sought counseling after her father’s death. She did not speak with a
health care provider about her father’s death prior to June of 2010. She was referred to
counseling by Miami-Dade Court as the result of a DUI arrest, Id. at 264.
89. Plaintiff never told anyone that when she was admitted to Montefiore January 26, 2011,
after falling out of bed it was because she was dizzy. She did not tell anybody that the
incident occurred because she consumed alcohol at the same time she was taking
medications. Plaintiff testified that she cannot recall what medications she was taking
within 24 hours of being admitted to Montefiore on that day. She is relating that
incident to the subject accident on June 3, 2010, Id. at 267.
90. Plaintiff testified that she was in her apartment with Anthony Arroyo when the January
incident occurred. She cannot recall whether he went to the hospital with her. Plaintiff
testified that she got to the hospital by walking as it is located next door. Plaintiff does
not recall telling the staff at Montefiore on January 26, 2011 that she had previous
blackouts while she consumed alcohol, Id. at 268.
91. Plaintiff testified that when she went to the Montefiore Clinic on March 18, 2011, she
complained of an ankle sprain when she fell out of bed. She cannot be certain that the
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March 2011 incident occurred because of the subject accident. Plaintiff testified that
she got to the Clinic on March 18, 2011 by walking without the assistance of devices,
Id. at 271.
92. Plaintiff presented at the deposition with a brace on the outside of her clothing. Plaintiff
testified that the brace was prescribed by Dr. Datta for her previous lumbar surgery.
Dr. Datta told her after June 3, 2016 to wear the brace for about six months because
she had to have some hardware removed. The hardware was removed on June 3, 2016.
Plaintiff testified that she is asserting that surgery as part of this litigation, Id. at 272.
93. Plaintiff testified that her first indication that the screw had failed was in January to
February of 2016 when she started having some low-grade fevers. She saw her
primary doctor and the PA for the Back Center where Dr. Datta works regarding these
symptoms, Id. at 276.
94. Plaintiff testified that she was undergoing physical therapy at Free Motion Physical
Therapy in Viera. She was prescribed physical therapy by Anne or Dr. Datta in June of
2016 because she had neck surgery in November of 2015, Id. at 285.
95. Plaintiff’s physical therapy did not include complaints of the lumbar spine. Id. at
286.
96. Plaintiff testified that the first time after June 3, 2010 that she made a complaint to any
of her physicians about pain in her right knee was to Dr. Hensel in August of 2013, Id.
at 297.
97. When Plaintiff saw Dr. Hensel, she indicated to him that there was no specific injury
or trauma to her right knee that brought her in, Id. at 297.
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98. No physician ever told plaintiff that the issues that were diagnosed in her right knee
were related to the June 3, 2010 accident, Id. at 297.
99. Plaintiff is claiming right knee issues in this action because she was told that by a
surgeon or doctor that steroid injections can break down tissue and weaken tissues.
Plaintiff cannot recall which physician told her that. Plaintiff cannot recall whether she
has had any steroid injections in her right knee or other parts of her body prior to August
of 2013. Plaintiff has had prior spinal injections in her neck, cervical region and lumbar
regio Id. at 298.
100. Plaintiff was referred to Dr. Fazzini because she was complaining of problems with
memory, severe headaches and confusion. Dr. Fazzini’s opinion was that plaintiff had
hypochondrial tendencies, Id. at 311.
101. Plaintiff had a brain MRI while in New York at Montefiore Medical Center. She was
told that there were no abnormal findings in that MRI, Id. at 313.
102. Plaintiff had two additional brain MRIs where each came back normal. Plaintiff also
had a QEEC done by Dr. Weiss which came back normal, Id. at 314.
103. Plaintiff testified that since October 10, 2011 she has taken Xanax even though Dr.
Bhat told her not to take it with all the medications she was already taking, Id. at 321-
322.
104. Plaintiff has looked up some of her medications on-line – Cymbalta, Percocet and
Vicodin. She testified that she never looked up the interaction of Xanax with any of
these other medications, Id. at 323.
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105. Plaintiff testified that when she first saw Dr. Layton in May of 2012, she described her
back pain as being “new and different” because it seemed to just progressively get
worse. Plaintiff testified that she misspoke about the back pain being “new”, Id. at 338.
106. Plaintiff could not recall what her response was when Dr. Layton’s found that her
medical history revealed that she had a substance abuse problem, Id. at 339.
107. Plaintiff could not recall whether Dr. Layton expressed concerns about her continual
request for opiate refills and prescriptions.
108. Plaintiff testified that she has had more than three cervical spine epidurals and
probably more than five lumbar spine epidurals, Id. at 342-343.
109. Plaintiff testified that she told Dr. Datta in October of 2012 that the only part of her
back she injured in the December of 2008 was her thoracic spine because that is what
Dr. Tindel said, that it was Schnorl’s nodes in the thoracic spine, Id. at 356.
c. Plaintiff’s Testimony March 11, 2019
118. Plaintiff testified that after the June 3, 2010 accident, she first had trouble with her
right knee either before 2013 or during 2013 because mentioned to Dr. Gopal that she
was having some knee pain while in New York prior to 2013, See Exhibit “Q” at 14-
15.
119. After she had right knee surgery in 2015, plaintiff had neck surgery on November 13,
2015 at Holmes Regional Medical Center. She stayed at Holmes Regional for about
two to three days after the surgery and then was discharged to go home. Plaintiff
testified that she was discharged with a hard collar neck device with the discharge
instructions of not to drive for a particular period of time, Id. at 16.
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120. Plaintiff testified that she felt decreased overall amount of pain to her neck following
the cervical fusion, Id. at 21.
121. Plaintiff testified that she was having problems with her lumbar spine that necessitated
the removal of the hardware in 2014 as she was experiencing increased pain in that
general area along with fevers, Id. at 25.
122. Besides receiving physical therapy at Free Motion Physical Therapy after her lumbar
spinal surgery, plaintiff was still treating at the Back Center, Id. at 30.
123. Plaintiff testified that she was treating consistently with the Back Center up until the
spinal cord stimulator implant in June of 2018, Id. at 38.
124. Plaintiff testified that she cannot tell whether the spinal cord stimulator helped her
pain in either her neck, back or both. It has not helped with her range of motion. She
has not noticed any improvement since getting the implant in any of her ailments as
a result of the subject accident. Plaintiff told Dr. Datta and Dr. Zaidi who said they
can make it stronger, Id. at 40.
125. Since the implant was tweaked to be stronger, she has noticed a little bit of
improvement. The spinal cord stimulator is the last surgery as a result of the subject
accident, Id. at 41.
126. Plaintiff testified that she saw Dr. Weiss, a neurologist, back in February 2019 with
complaints of cognition and memory issues, neck pain, back pain, thoracic pain,
radiating pain from the lumbar to the buttocks and hips with tingling in the feet and
both hands, Id. at 43.
127. Plaintiff testified that she has had tingling in her fingers prior to the subject motor
vehicle accident. The tinging in her feet was not noticed until after the accident. Dr.
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Weiss wanted to refer plaintiff to the Mayo Clinic in Jacksonville for neurology
where they were going to put plaintiff on a new migraine medicine and give her a
Toradol shot for her pain. Plaintiff felt a little relief after the shot, Id. at 44.
128. Plaintiff describes her cognition issues as affecting her ability to concentrate and
remembering things. Plaintiff further testified that the cognition issues is possibly
related to the subject accident, but as far as medications, the doctors did tests related
to her head injuries from the fall where she hit her head back in November 2010 and
January 2011.
129. Plaintiff testified that Dr. Weiss prescribed her a medication called Emigality. The
pharmacy could not find the prescription since it was a new medication that they
never heard of so plaintiff was unable to pick it up, Id. at 46.
130. Plaintiff testified that the last time she worked was June 3, 2010. She is currently
going to the gym at Pro-Health & Fitness where she does aquatics and pilates to see
if it would help her neck and back, Id. at 47.
131. Plaintiff does 45 minute aquatics classes a couple times a week. She no longer does
pilates because she could not lay on the mat and it got too expensive but when she
was doing pilates it was twice a week for two to three years intermittently. Plaintiff
has been a member of Pro-Health Fitness since 2014. Id. at 48.
132. Plaintiff testified that she tried Zumba classes twice a week. The last time she tried
Zumba was a few days before this deposition. The Zumba class is 50 minutes long.
Preview
FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X KELLEY PHILLIPS, Index No.: 21169/11 Plaintiff, AFFIRMATION IN - against - SUPPORT DREW SWISS and MONTEFIORE MEDICAL CENTER, Defendants. -----------------------------------------------------------------------X GAIL L. RITZERT, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following, upon information and belief, pursuant to CPLR §2106: 1. I am a Partner at the law firm of KIERNAN TREBACH LLP, counsel for the Defendant, MONTEFIORE MEDICAL CENTER (the “Moving Defendant”), in the above-entitled action. As such, I am fully familiar with the facts and circumstances as set forth herein, the source of my knowledge being the file maintained by my office in the course of handling this matter. NATURE OF MOTION 2. Plaintiff, KELLEY PHILLIPS commenced the above-captioned action arising out of a motor vehicle accident that occurred on June 3, 2010 at approximately 10:30 a.m. on Bainbridge Avenue at East 211th Street, Bronx, New York. 3. As discussed in further detail below and in the accompanying Memorandum of Law, the defendant, MONTEFIORE MEDICAL CENTER (hereinafter “the moving defendant”) is respectfully submitting the instant motion seeking an Order (1) granting summary judgment to the Moving Defendant, pursuant to CPLR §3212 and all claims 1 1 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 against the Moving Defendant in the plaintiff’s Verified Complaint be dismissed on the grounds that the plaintiff has not sustained a “Serious Injury” as defined by Insurance Law §5102(d), and is thus barred from recovery under Insurance Law §5104; and (2) for such other and further relief as this Court deems just and proper. PROCEDURAL HISTORY 4. Plaintiff, KELLEY PHILLIPS (hereinafter “plaintiff”), commenced this action in Supreme Court, Bronx County on or about May 24, 2013 against defendant, DREW SWISS, for personal injuries allegedly sustained as the result of a motor vehicle accident that occurred on or about June 3, 2010 at approximately 10:30 a.m. on Bainbridge Avenue at E. 211th Street, Bronx, New York. A copy of the Summons and Verified Complaint is annexed hereto as Exhibit “A”. 5. Without admitting any of the facts contained therein, in the Complaint plaintiff alleges that on June 3, 2010 she was the driver and sole occupant of a 2000 Honda Civic Sedan that was stopped on the westerly side of Bainbridge Avenue at its intersection with 211th Street, facing south, when she was rear-ended by defendant, Drew Swiss, who was operating a Lexus motor vehicle during the course of his employment with moving defendant. Id. 6. Pursuant to Court Order, Plaintiff served a Supplemental Summons and Verified Amended Complaint, adding MONTEFIORE MEDICAL CENTER as defendant on or about May 24, 2013. A copy of plaintiff’s Supplemental Summons and Verified Amended Complaint is annexed hereto as Exhibit “B”. 2 2 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 7. Defendant DREW SWISS joined issue with a Verified Answer to the Verified Amended Complaint and Cross-Claims against the moving defendant on or about June 27, 2013. A copy of their Verified Answer with Cross-Claims is annexed hereto as Exhibit “C”. 8. MONTEFIORE MEDICAL CENTER joined issue by filing a Verified Answer to the Amended Complaint with Affirmative Defenses and Cross-Claims against DREW SWISS on August 13, 2013. A copy of the Verified Answer is annexed hereto as Exhibit “D”. 9. Simultaneously, the moving defendant filed their Reply to the Cross-Claims brought forth by DREW SWISS. A copy of the Reply to Cross-Claims is annexed hereto as Exhibit “E”. 10. Plaintiff served her Verified Bill of Particulars on or about March 27, 2014. A copy of the Verified Bill of Particulars is annexed hereto as Exhibit “F”. 11. Plaintiff served a Supplemental Bill of Particulars on or about April 22, 2014. A copy of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “G”. 12. Plaintiff served a Supplemental Bill of Particulars on or about May 16, 2014. A copy of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “H”. 13. Plaintiff served a Supplemental Bill of Particulars on or about May 20 2014. A copy of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “I”. 14. Plaintiff served another Supplemental Bill of Particulars on or about October 17, 2014. A copy of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “J”. 3 3 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 15. Plaintiff was deposed on October 22, 2014. A copy of her deposition transcript is annexed hereto as Exhibit “K”. 16. Plaintiff served a Supplemental Verified Bill of Particulars on April 24, 2015. A copy of the Supplemental Bill of Particulars is annexed hereto as Exhibit “L”. 17. Plaintiff continued her deposition testimony on July 26, 2016. A copy of this deposition transcript is annexed hereto as Exhibit “M”. 18. On February 12, 2015, plaintiff appeared for a medical examination with Naunihal Sing, M.D. a board-certified Neurologist. A copy of Dr. Singh’s report is annexed hereto as Exhibit “N”. 19. On November 1, 2016, plaintiff appeared for a medical examination with Jeffrey Brown, M.D. a board-certified Neuro-Psychiatrist. A copy of Dr. Brown’s report is annexed hereto as Exhibit “O” 20. Plaintiff served a Supplemental Verified Bill of Particulars on April 27, 2018. A copy of the Supplemental Bill of Particulars is annexed hereto as Exhibit “P”. 21. Plaintiff was further deposed on March 11, 2019. A copy of the deposition transcript is annexed hereto as Exhibit “Q”. 22. Plaintiff served a Supplemental Verified Bill of Particulars on June 20, 2019. A copy of the Supplemental Bill of Particulars is annexed hereto as Exhibit “R”. 23. On December 2, 2020 a virtual conference was held between counsel for all parties. At which time the Court was informed that all depositions had been held, that the plaintiff would be sending out new authorizations, that plaintiff was undergoing continued medical care and treatment, and that plaintiff would be produced for a medical deposition relating to the outstanding medicals. As such all parties agreed that all 4 4 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 additional discovery would be completed by February 17, 2021. Consequently, the matter was adjourned for a virtual status conference on March 18, 2021. A copy of the December 2, 2020 Court Order is annexed hereto as Exhibit “S”. 24. Plaintiff was further deposed on February 17, 2021. A copy of her deposition testimony is annexed hereto as Exhibit “T”. 25. Defendant, DREW SWISS, was deposed on July 25, 2012. A copy of the deposition transcript is annexed hereto as Exhibit “U” 26. On March 19, 2021, a Court Order was issued requiring that plaintiff be examined by a spinal surgeon and orthopedist between June 7, 2021 and June 18, 2021. A copy of the Court Order is annexed hereto as Exhibit “V”. 27. Thereafter, Plaintiff served another Supplemental Verified Bill of Particulars on May 21, 2021. A copy of the Supplemental Verified Bill of Particulars is annexed hereto as Exhibit “W”. 28. Pursuant to the March 19, 2021 Court Order, Plaintiff was served Notices of Designation, on June 15, 2021, via electronic mail, pertaining to the examinations by Andrew Bazos, M.D., board-certified orthopedic surgeon, Alexander Merkler, M.D., board-certified neurologist, and further examination by Jeffrey Brown, M.D., board- certified neuro-psychiatrist. A copy of the Notices of Designation are annexed hereto as Exhibit “X”. 29. Prior to the completion of the aforesaid medical examinations, plaintiff filed the Note of Issue and Certificate of Readiness on June 25, 2021. A copy of the Note of Issue is annexed hereto as Exhibit “Y”. 5 5 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 30. On July 12, 2021 plaintiff’s counsel requested, via electronic mail, that the aforementioned defense examinations be rescheduled to consecutive dates after August 9, 2021 in order to accommodate the plaintiff’s travel from her residence in Florida to New York to attend the examinations. A copy of this email correspondence is annexed hereto as Exhibit “Z”. 31. On August 18, 2021, Plaintiff appeared for a physical examination with Sheeraz Qureshi, M.D., board-certified Orthopaedic Surgeon. 32. Plaintiff appeared for a physical examination with Andrew Bazos, M.D., board- certified Orthopedic Surgeon on August 19, 2021. A copy of Dr. Bazos’ report is annexed hereto as Exhibit “AA”. 33. On August 20, 2021, plaintiff appeared for a physical examination with Alexander Merkler, M.D., board-certified Neurologist. 34. Plaintiff was scheduled to be examined by Dr. Brown, board-certified Neuro- Psychiatrist, at her Florida residence on September 22nd and 23rd, 2021. In an electronic mail correspondence on September 22, 2021, a representative from plaintiff’s counsel admitted that their office failed to advise all parties and Dr. Brown that plaintiff would no longer be available for said examinations. A copy of this email correspondence is annexed hereto as Exhibit “BB”. This examination has not been completed. 35. To date, plaintiff’s counsel has not been cooperative in completing defense examinations. As such this motion is timely. 36. This motion is timely filed following the filing of the Note of Issue. FACTUAL SUMMARY I. Plaintiff’s Verified Bill of Particulars 6 6 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 37. In her Verified Bill of Particulars, plaintiff alleges that as a result of the subject accident, she sustained the following injuries: disc herniation and annular tear of L5- S1; degenerative disc increase of L5-S1; chronic neck pain and bilateral upper extremity pain; mild bulging disc of C5-6, C6-7; mild disc degeneration of L5-S1; closed head injury with post traumatic headaches and cognitive loss; chronic debilitating back and occasional leg pain; on December 27, 2012 plaintiff under L3 through S1 lumbar discography via discogram with C-arm radiologic interpretation; major depressive disorder; agoraphobia with panic disorder; generalized anxiety disorder; anxiety state; aggravation of a pre-existing condition of the lumbar cervical and thoracic spine; exacerbation of a latent disease and or condition of the lumbar, cervical and thoracic spine; pain, tenderness, weakness, loss of function, loss of strength, limitation and restriction of motion, and pain on motion; as well as injures that have been aggravated, activated and/or precipitated any underlying hypertrophic, degenerative, arthritic, circulatory, arterial, venous, and/or systemic conditions which were asymptomatic prior to the accident complaint of. See Exhibit “F”. 38. Plaintiff claims she was confined to bed from June 3, 2010 through April 1, 2011, and confined to home from June 3, 2010 through May 31, 2011 except for visits to the necessary medical aid, treatment and attention. Id. 39. Plaintiff further claims that at the time of the subject accident she was employed as a surgical resident at Jacobi Medical Center, and was a full time student prior to her employment. Plaintiff alleges that she has been unemployed from the date of the accident to present. Id. 7 7 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 40. Four years after the date of loss, in multiple Supplemental Bill of Particulars served in 2014, plaintiff claimed lumbar disc herniations L4-S1; that on March 28, 2014 plaintiff underwent L4-S1 spinal fusion; traumatic brain injury; psychiatric injury; anxiety disorder, and depression; right knee vertical medial meniscal tear with radial extension, irreparable; right knee discoid lateral meniscus; that on September 20, 2013 she underwent right knee arthroscopy with medial meniscal debridement; right knee arthroscopy with saucerization of the discoid lateral meniscus; aggravation of a pre- existing condition of the right knee; and activation of a latent disease or condition of the right knee; she underwent C6-7 prestige disc replacement and anterior cervical discectomy with decompression of posterior disc osteophyte complexes C6-C7 on August 15, 2014. See, Exhibits “F-J.” 41. In her Supplemental Bill of Particulars dated June 20, 2019, plaintiff asserts that nine years after the date of losss she underwent the following surgical procedures: spinal cord stimulator implant surgery on June 29, 2018; lumbar spine hardware removal surgery on June 3, 2016; and cervical spine fusion surgery on November 13, 2015. See Exhibit “R”. 42. In her Supplemental Bill of Particulars dated May 21, 2021, plaintiff claims eleven years later, she underwent multiple trigger point injections in the plantar fascia of the right and left feet, and that on July 28, 2020 plaintiff underwent right minimally invasive sacroiliac fusion, and use of intraoperative fluoroscopy, use of the intraoperative neuromonitoring, electromyography, somatosensory-evoked potential. See Exhibit “W”. II. Examination Before Trial of Plaintiff 8 8 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 a. Plaintiff’s Testimony October 22, 2014 47. Plaintiff testified that the accident occurred on June 3, 2010 around 10:30 a.m. See Exhibit “K” at 30. She alleges that the accident occurred on Bainbridge Avenue near East 211th Street, Id. at 31. She alleges that she was at a stoplight on Bainbridge, a two- way street, Id. at 33. She states that the time of the accident, her vehicle was equipped with front air bags that did not deploy as a result of the accident. Id. at 37. Plaintiff further alleges that when she approached the intersection of 211th Street her vehicle was brought to a stop at a red traffic light. Eventually the light turned green and as she was waiting for two cars ahead of her to go, she all of a sudden felt a hard knock from behind. 48. She further alleges that as a result of the impact, her torso, neck and back went forward and then rocked back. Both of her hands were on the steering wheel at the time of impact Id. at 40-41. 49. Four photographs of the plaintiff’s vehicle were marked at the deposition. See Exhibit “CC” 50. Plaintiff asserts that her rear-end bumper was detached at the accident scene, Id. at 49. 51. After the accident, plaintiff and the driver of defendant’s vehicle pull over to have a conversation about whether the police and/or insurance companies were going to be called, Id. at 51. 52. Plaintiff further testifies that the driver of defendant’s vehicle advised that he prefer that she contact or get an estimate from Maaco, whom he had a contract with, and because he worked as the Vice President of Finance at Montefiore Hospital, Id. at 52. 9 9 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 53. Plaintiff further testifies that she did not feel pain in any portion of her body immediately after the impact, Id. 54. She states that she did not feel pain as a result of the accident until she was on her way to Maaco, at which time she felt pain to her neck and back that started progressing, Id. at 54. 55. She testified that initially she wanted to call the police but after DREW SWISS stated that he was the Vice President of Finance at Montefiore she was convinced she could find him, Id. at 56. 56. She describes looking at the damage to her vehicle after the accident as “the rear bumper dangling and damaged. The trunk was crunched. The right rear panel was damaged,” Id. at 60. This description is belied by the photographs of plaintiff’s vehicle. 57. Plaintiff testifies that she felt pain to her neck, lower back to her buttocks and both shoulders, Id. at 68. Plaintiff went to the emergency room at Montefiore with chief complaints of “severe neck, back, and bilateral shoulder pain with spasms…migraine and I was hurting so bad that my quadriceps were even like in spasm and trembling”, Id. at 68-69. 58. Plaintiff confirmed that she received an estimate of $2,000 to repair her vehicle. Id. at 70. 59. Plaintiff testifies that she walked to the emergency room which is across the street from her apartment, Id. at 76. 60. Plaintiff testifies that she was involved in a prior motor vehicle accident in December 2008 in the Bronx, Id. at 77. In that accident she rear ended another vehicle on Bronx 10 10 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 River Parkway. She was operating the same Honda vehicle at the time of this previous accident. She asserts that she sustained injury as a result of the previous accident to her “neck and mid back”, Id. at 80-81. 61. She testifies that as a result of the 2008 accident she went to Jacobi Hospital, but cannot recall what days/weeks she went after the accident. She was on rotations when the 2008 accident occurred, Id. at 86. 62. She testified that her complaints at Jacobi Hospital as to her neck were pain and spasms. She had pain at her thoracic spine, lower back pain and bilateral shoulders. She testified that she had spams at her shoulders and they performed diagnostic tests, the result of same being Schmorl’s nodes, Id. at 88-89. 63. Plaintiff testified that upon discharge she was measured for a TLSO brace that goes from the breasts down to the lumbosacral area, Id. at 96. 64. Plaintiff testified that she officially went on formal sick leave in August of 2010, Id. at 110. 65. Plaintiff was no longer taking the medications or using the brace associated with the 2008 accident by June 2010, Id at 114. b. Plaintiff’s Testimony July 26, 2016 66. Plaintiff testified that she underwent her breast augmentation surgery in 2006 with Dr. Hochstein in Aventura, See Exhibit “M ” at 210. 67. Other than her breast augmentation surgery, plaintiff has not had any other cosmetic surgery, Id at 212. 68. In a physician’s report prepared by Dr. Fulton, plaintiff’s “history of present illness” states that “She was stopped a light when she was struck from behind at a fairly high 11 11 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 rate of speed by a small SUV”. Plaintiff previously stated that she did not know the speed of the vehicle, Id at 213. 69. Plaintiff never told Dr. Fulton about her third automobile accident that occurred before the 2008 accident because “she had no problems after that accident”, Id at 214. 70. On a diagnostic report prepared by Dr. Fulton it says “I reviewed a stack of radiology reports that describe various minor degenerative changes but no significant traumatic issues”, Id at 220. 71. Plaintiff was diagnosed with fibromyalgia by Ann Lesak. She recalls she possibly discussed this diagnosis with Dr. Bhat at Health First, Id at 221. 72. Plaintiff testified that she is relating the head injury she sustained on October 30, 2010 to November 1, 2010 to the subject accident. She is also asserting that the head injury that she asserted she sustained in January of 2011 relates to the June 3, 2010 accident, without any basis. Plaintiff never told any physician that those incidents were the result of alcohol, even though she admitted sustained alcohol blackout pre-accident Id. at 225. 73. Plaintiff testified that she is refuting a note of August 1, 2011 from Health First that states “She also reports that she has had two head traumas after drinking alcohol while on a muscle relaxant passing out and hitting her head,” Id at 226. 74. Plaintiff testified and admitted that before the incident where she went to the hospital on November 1, 2010 she had consumed alcohol at the same time she was taking medications approximately 6 hours before, Id at 227. 75. Plaintiff testified that she went to the hospital in January of 2011 asserting a head injury because she hit her head and fell to floor. She cannot recall what medications she was taking at the time of the incident, Id. at 228. 12 12 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 76. Plaintiff testified that she never refuted the physician’s note from Health First that the 7/23/2011 MRI takin at Holmes Regional was found to reveal mild degenerative disc disease at L-5 and S-1 with some disc space narrowing at L-5, S-1, Id. at 230-231. 77. Plaintiff testified that she does not recall why she filled a prescription for Ambien in February of 2010, prior to the date of accident. She further testified that she does not recall being prescribed Prozac in 2009. She does not remember having the prescription filled five times in 2009. She does not recall having the prescription for Prozac filled in 2010 before the June 3, 2010 subject accident, Id. at 235-236. 78. Plaintiff testified that urinary issues are the result of the June 3, 2010 accident. She does not recall having made any complaints prior to June 3, 2010 about urinary hesitancy. She testifies that she does not recall having urinary hesitancy despite the note in Dr. Gross’s report on January 18, 2010 which indicates that she has urinary hesitancy, Id. at 237-238. 79. Plaintiff testified that she does not recall having urinary hesitancy problems for two years despite a December 2010 physician’s note from Dr. Gross which indicates that the onset of her urinary symptoms has been gradual and occurring on an intermittent pattern for two years, Id. at 239. 80. Plaintiff testified that she was given the prescription for the cervical spine MRI that was done at Gun Hill MRI in April 2010 by Dr. Renata Weber. She further testified that Ms. Weber discussed the result of the MRI with her, that there was nothing significant found, Id. at 241. 81. Plaintiff testified that she did not report to work June 3, 2010 before or after the accident. She further testified that the indication in Montefiore’s records that 13 13 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 indicates that she worked for at least four hours after the accident on June 3, 2010 is inaccurate, Id. at 242. 82. Plaintiff testified that she may have returned to Florida for any period of time from December 5, 2008 to December 31, 2010, Id. at 253. 83. Plaintiff testified that after the December 5, 2008 accident, she went on a cruise with her mother in 2009 to Peru, Belize and Costa Rica. After the June 3, 2010 subject accident, she went to Puerto Rico in 2014 with friends, Id. at 255. 84. Plaintiff testified that she does not recall not having any pain since the June 3, 2010 accident despite the fact that records from Dr. Schneeberger which reflect that she took a vacation with a friend at which time she had no pain. She recalls taking a trip to Monticello with a friend but cannot recall what year it was, Id. at 255. 85. Plaintiff testified that her father came after her with an ax when she was around eight to ten years old. She blocked the memory of that incident until she recalled it in 2014 to 2015. She never told any of her health care providers in New York about the incident. Plaintiff further testified that she put a lock on her door when she went to medical school or when she came to visit her parents in Florida after medial school because she was afraid of her father, Id. at 258. 86. Plaintiff is asserting PTSD as a result of the June 3, 2010 accident. When she did the rotation through a psychiatric department or ward while she was in medical school. While doing the rotation in the psychiatric unit she was instructed and taught that it was important to find out and get a complete history from a patient to learn all the events in the person’s life. She knew that when she spoke with her physicians, in 14 14 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 particular with complaints of anxiety and stress, that it was important to tell them about all the stress sources in her life, Id. at 259. 87. Plaintiff testified that she knows that a DSM-4 is an access used in psychiatry. She used it while in medical school during the rotation through the psychiatric department. She was not using the DSM-4 when she in six-week rotation even though she knew that it was a resource a person could use for information on psychiatric disorders, Id. at 261. 88. Plaintiff never sought counseling after her father’s death. She did not speak with a health care provider about her father’s death prior to June of 2010. She was referred to counseling by Miami-Dade Court as the result of a DUI arrest, Id. at 264. 89. Plaintiff never told anyone that when she was admitted to Montefiore January 26, 2011, after falling out of bed it was because she was dizzy. She did not tell anybody that the incident occurred because she consumed alcohol at the same time she was taking medications. Plaintiff testified that she cannot recall what medications she was taking within 24 hours of being admitted to Montefiore on that day. She is relating that incident to the subject accident on June 3, 2010, Id. at 267. 90. Plaintiff testified that she was in her apartment with Anthony Arroyo when the January incident occurred. She cannot recall whether he went to the hospital with her. Plaintiff testified that she got to the hospital by walking as it is located next door. Plaintiff does not recall telling the staff at Montefiore on January 26, 2011 that she had previous blackouts while she consumed alcohol, Id. at 268. 91. Plaintiff testified that when she went to the Montefiore Clinic on March 18, 2011, she complained of an ankle sprain when she fell out of bed. She cannot be certain that the 15 15 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 March 2011 incident occurred because of the subject accident. Plaintiff testified that she got to the Clinic on March 18, 2011 by walking without the assistance of devices, Id. at 271. 92. Plaintiff presented at the deposition with a brace on the outside of her clothing. Plaintiff testified that the brace was prescribed by Dr. Datta for her previous lumbar surgery. Dr. Datta told her after June 3, 2016 to wear the brace for about six months because she had to have some hardware removed. The hardware was removed on June 3, 2016. Plaintiff testified that she is asserting that surgery as part of this litigation, Id. at 272. 93. Plaintiff testified that her first indication that the screw had failed was in January to February of 2016 when she started having some low-grade fevers. She saw her primary doctor and the PA for the Back Center where Dr. Datta works regarding these symptoms, Id. at 276. 94. Plaintiff testified that she was undergoing physical therapy at Free Motion Physical Therapy in Viera. She was prescribed physical therapy by Anne or Dr. Datta in June of 2016 because she had neck surgery in November of 2015, Id. at 285. 95. Plaintiff’s physical therapy did not include complaints of the lumbar spine. Id. at 286. 96. Plaintiff testified that the first time after June 3, 2010 that she made a complaint to any of her physicians about pain in her right knee was to Dr. Hensel in August of 2013, Id. at 297. 97. When Plaintiff saw Dr. Hensel, she indicated to him that there was no specific injury or trauma to her right knee that brought her in, Id. at 297. 16 16 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 98. No physician ever told plaintiff that the issues that were diagnosed in her right knee were related to the June 3, 2010 accident, Id. at 297. 99. Plaintiff is claiming right knee issues in this action because she was told that by a surgeon or doctor that steroid injections can break down tissue and weaken tissues. Plaintiff cannot recall which physician told her that. Plaintiff cannot recall whether she has had any steroid injections in her right knee or other parts of her body prior to August of 2013. Plaintiff has had prior spinal injections in her neck, cervical region and lumbar regio Id. at 298. 100. Plaintiff was referred to Dr. Fazzini because she was complaining of problems with memory, severe headaches and confusion. Dr. Fazzini’s opinion was that plaintiff had hypochondrial tendencies, Id. at 311. 101. Plaintiff had a brain MRI while in New York at Montefiore Medical Center. She was told that there were no abnormal findings in that MRI, Id. at 313. 102. Plaintiff had two additional brain MRIs where each came back normal. Plaintiff also had a QEEC done by Dr. Weiss which came back normal, Id. at 314. 103. Plaintiff testified that since October 10, 2011 she has taken Xanax even though Dr. Bhat told her not to take it with all the medications she was already taking, Id. at 321- 322. 104. Plaintiff has looked up some of her medications on-line – Cymbalta, Percocet and Vicodin. She testified that she never looked up the interaction of Xanax with any of these other medications, Id. at 323. 17 17 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 105. Plaintiff testified that when she first saw Dr. Layton in May of 2012, she described her back pain as being “new and different” because it seemed to just progressively get worse. Plaintiff testified that she misspoke about the back pain being “new”, Id. at 338. 106. Plaintiff could not recall what her response was when Dr. Layton’s found that her medical history revealed that she had a substance abuse problem, Id. at 339. 107. Plaintiff could not recall whether Dr. Layton expressed concerns about her continual request for opiate refills and prescriptions. 108. Plaintiff testified that she has had more than three cervical spine epidurals and probably more than five lumbar spine epidurals, Id. at 342-343. 109. Plaintiff testified that she told Dr. Datta in October of 2012 that the only part of her back she injured in the December of 2008 was her thoracic spine because that is what Dr. Tindel said, that it was Schnorl’s nodes in the thoracic spine, Id. at 356. c. Plaintiff’s Testimony March 11, 2019 118. Plaintiff testified that after the June 3, 2010 accident, she first had trouble with her right knee either before 2013 or during 2013 because mentioned to Dr. Gopal that she was having some knee pain while in New York prior to 2013, See Exhibit “Q” at 14- 15. 119. After she had right knee surgery in 2015, plaintiff had neck surgery on November 13, 2015 at Holmes Regional Medical Center. She stayed at Holmes Regional for about two to three days after the surgery and then was discharged to go home. Plaintiff testified that she was discharged with a hard collar neck device with the discharge instructions of not to drive for a particular period of time, Id. at 16. 18 18 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 120. Plaintiff testified that she felt decreased overall amount of pain to her neck following the cervical fusion, Id. at 21. 121. Plaintiff testified that she was having problems with her lumbar spine that necessitated the removal of the hardware in 2014 as she was experiencing increased pain in that general area along with fevers, Id. at 25. 122. Besides receiving physical therapy at Free Motion Physical Therapy after her lumbar spinal surgery, plaintiff was still treating at the Back Center, Id. at 30. 123. Plaintiff testified that she was treating consistently with the Back Center up until the spinal cord stimulator implant in June of 2018, Id. at 38. 124. Plaintiff testified that she cannot tell whether the spinal cord stimulator helped her pain in either her neck, back or both. It has not helped with her range of motion. She has not noticed any improvement since getting the implant in any of her ailments as a result of the subject accident. Plaintiff told Dr. Datta and Dr. Zaidi who said they can make it stronger, Id. at 40. 125. Since the implant was tweaked to be stronger, she has noticed a little bit of improvement. The spinal cord stimulator is the last surgery as a result of the subject accident, Id. at 41. 126. Plaintiff testified that she saw Dr. Weiss, a neurologist, back in February 2019 with complaints of cognition and memory issues, neck pain, back pain, thoracic pain, radiating pain from the lumbar to the buttocks and hips with tingling in the feet and both hands, Id. at 43. 127. Plaintiff testified that she has had tingling in her fingers prior to the subject motor vehicle accident. The tinging in her feet was not noticed until after the accident. Dr. 19 19 of 45 FILED: BRONX COUNTY CLERK 10/25/2021 10:40 PM INDEX NO. 21169/2011E NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 10/25/2021 Weiss wanted to refer plaintiff to the Mayo Clinic in Jacksonville for neurology where they were going to put plaintiff on a new migraine medicine and give her a Toradol shot for her pain. Plaintiff felt a little relief after the shot, Id. at 44. 128. Plaintiff describes her cognition issues as affecting her ability to concentrate and remembering things. Plaintiff further testified that the cognition issues is possibly related to the subject accident, but as far as medications, the doctors did tests related to her head injuries from the fall where she hit her head back in November 2010 and January 2011. 129. Plaintiff testified that Dr. Weiss prescribed her a medication called Emigality. The pharmacy could not find the prescription since it was a new medication that they never heard of so plaintiff was unable to pick it up, Id. at 46. 130. Plaintiff testified that the last time she worked was June 3, 2010. She is currently going to the gym at Pro-Health & Fitness where she does aquatics and pilates to see if it would help her neck and back, Id. at 47. 131. Plaintiff does 45 minute aquatics classes a couple times a week. She no longer does pilates because she could not lay on the mat and it got too expensive but when she was doing pilates it was twice a week for two to three years intermittently. Plaintiff has been a member of Pro-Health Fitness since 2014. Id. at 48. 132. Plaintiff testified that she tried Zumba classes twice a week. The last time she tried Zumba was a few days before this deposition. The Zumba class is 50 minutes long.