Fall v. Greyhound Lines Inc.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 were read on this motion to/for JUDGMENT -SUMMARY. In the complaint in this action (NYSCEF Doc. No. 22), which is dated September 17, 2018, plaintiff alleges that, on June 2, 2018, a bus owned by defendant Greyhound Lines, Incorporated (Greyhound) and driven by defendant Reginald Glover (Glover) struck a car in which she was a passenger (the accident). When the accident occurred, plaintiff was around 54 years old. As a result of the accident, the complaint contends that plaintiff sustained serious injuries (Insurance Law §5102 [d]) and that “plaintiff is entitled to recover for non-economic losses as set are not included within the definition of ‘basic economic loss; as set forth in §5102 (a) of the Insurance Law…” (NYSCEF Doc. No. 22, 3). Plaintiff’s bill of particulars specifies, as is relevant here, that plaintiff has developed tendinosis around both shoulders, that she suffers from decreased range of motion of both shoulders and that she has ongoing tenderness in her left and right shoulders (NYSCEF Doc. No. 23, 7). In addition, plaintiff contends that she suffers from post-traumatic stress disorder (PTSD), major depressive disorder, post-concussion syndrome, anxiety, headaches, dizziness, insomnia, and fatigue, and that she has difficulty concentrating and has short and long-term memory problems (id.). She attributes her memory and concentration problems to traumatic brain injury (TBI). As for her treatment, the bill of particulars indicates that “plaintiff received emergency medical treatment at Harlem Hospital Medical Center” (Harlem Hospital) on the date of the accident (id., 8). Further, it states that she underwent treatment for pain and other symptoms in 2018 and 2019 (id., 7). Plaintiff also states that prior to her accident, she earned around $1,300 per week as a production worker for Sirona Dental Inc. in Long Island City, and that she is permanently disabled and unable to work. In their October 31, 2018, answer, defendants deny liability and assert twenty-seven affirmative defenses. The first affirmative defense, which is relevant here, states that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 and did not suffer more than basic economic loss (NYSCEF Doc. No. 24, 26). Currently, defendants move for summary judgment on the ground that plaintiff cannot show that she has suffered a serious injury under Insurance Law §§5104 (a) and 5102 (d). 1. Defendant’s evidence and arguments. In support of their motion, defendants submit several expert reports.¹ Dr. Allen E. Rubenstein, who holds a New York State medical license and is board-certified by the American Board of Psychiatry and Neurology, examined plaintiff on October 6, 2020 (NYSCEF Doc. No. 25). He states that Harlem Hospital’s records revealed degenerative disc disease and other problems. He recounts plaintiff’s regular treatment with numerous other doctors throughout 2018 and 2019, for headaches, back and neck and shoulder pain, and psychological trauma. He opined that plaintiff did not require further neurological treatment and that she was able to work without medical restrictions.² Defendants also submit the expert affirmation of Dr. Neil S. Roth, an orthopedic surgeon specializing in sports medicine (NYSCEF Doc. No. 26). Dr. Roth examined plaintiff on October 13, 2020. He notes that, after her accident, plaintiff complained about pain in her neck, shoulders, upper and lower back, right elbow, and head. He notes that she treated with a physiatrist, an orthopedic surgeon, and a neurologist, and that she did not undergo surgery for any of her problems. He also opines that plaintiff’s “past medical history is noncontributory” (id., *2). Dr. Rubin’s examinations of her shoulders and elbows revealed no problems except for certain areas of tenderness that the doctor deemed insignificant. Overall, he opined that plaintiff “did not sustain any significant injury and did not require any significant treatment and will not require any treatment in the future” (id., *19). He concluded that plaintiff’s physical problems were due to chronic, degenerative conditions rather than to the accident, and that she had no need of further treatment and she could “fully engage in any and all activities including any amount of work without limitations” (id., *22). Also, he believed that plaintiff exaggerated and magnified her symptoms. Dr. David M. Erlanger, a neuropsychologist and psychologist licensed in New York, testified on defendants’ behalf as to plaintiff’s neuropsychological status (NYSCEF Doc. No. 28).³ Dr. Erlanger examined plaintiff on January 14, 2021. He states that plaintiff “is independent in basic activities of daily living” although he notes that she uses a chair when she showers and that her brother, daughter, and neighbors do her shopping, housekeeping, and laundry, her daughter supervises her when she pays her bills online, and her daughter and brother manage her medication and her calendar (id., *2). He notes that plaintiff worked steadily at her last job for 22 years before her accident, and that there was no evidence of mental health issues before the accident. Dr. Erlanger noted that plaintiff stood up and paced the room periodically, and that she asked that he lower the lights in the room. He determined that she was oriented, exhibited no abnormalities indicating a neurologic disorder, and that she spoke well and understood what was said to her. Though her mood “appeared low,” she did not exhibit suicidal or homicidal ideation. He opined that although plaintiff did not perform well on cognitive tests, she manufactured and exaggerated her neurological symptoms, and she was malingering. He found insufficient support for a finding of TBI and he rejected the idea that she had suffered from shorter-term deficits. However, he notes that prior examinations reached varying conclusions ranging from problems with anxiety, depression, forgetfulness, focus, PTSD, postconcussional disorder, chronic pain, by Drs. Schweiger and Robins, to intact recent and remote memory functions, by Dr. Davis. Dr. Amish H. Doshi, a neuroradiologist, also submitted an affirmation on defendants’ behalf (NYSCEF Doc. No. 30). Dr. Doshi’s report is dated May 14, 2021. Dr. Doshi reviewed and summarized the results of previous MRIs of plaintiff’s brain. He stated that the tests revealed no evidence of traumatic injury. Dr. Timothy W. Deyer, a radiologist, reviewed plaintiff’s 2018 MRI and CT scan reports, which did not show plaintiff’s alleged brain injury. In his January 31, 2021, statement, he opined that any problems plaintiff had were chronic and degenerative and were not the result of the accident (id.). Defendants also annex 23 pages of plaintiff’s records from Harlem Hospital Center (NYSCEF Doc. No. 29). In addition, they submit plaintiff’s 142-page deposition testimony (NYSCEF Doc. No. 27).⁴ Defendants’ statement of material facts alleges, among other things, that plaintiff has not substantiated her allegations of serious injury (NYSCEF Doc. No. 21, 4) and that she “attempted to feign cognitive deficits and psychological distress” during Dr. Erlanger’s examination (id., 27). It also generally discusses the expert reports that defendants submitted in support of this motion. In defendants’ counsel’s affirmation in support, defendants generally refer to the Harlem Hospital records and the conclusions of their experts. They also point to some comments in plaintiff’s deposition (NYSCEF Doc. No. 27). Specifically, they note that plaintiff did not bleed as a result of the accident (id., p 53 lines 13-18). They point out that plaintiff was able to walk to the ambulance (id., p 51 line 14 — p 52 line 21).⁵ In addition, they note that the doctor at Harlem Hospital stated that plaintiff had not broken any bones. Presently, plaintiff takes the stairs up to and down from her fourth-floor apartment in a walkup building (id., p 26 lines 4-21). She also takes the subway at least a few times a week (id., p 123 line 19 — p 124 line 18). Defendants note that, under Insurance Law §§5102 et. seq., a plaintiff must suffer a serious injury in order to litigate. “[A]ny injury not falling within the…definition of serious injury is minor and a trial by jury is not permitted under the no-fault system” (NYSCEF Doc. No. 20, 42 [quoting Licari v. Elliot, 57 NY2d 230, 235 (1982)]). They contend that, together, the medical evidence and plaintiff’s testimony support their contention that plaintiff did not sustain a serious injury. According to defendants, this evidence — which shows preexisting degenerative problems and the lack of evidence of trauma — establishes their right to judgment (citing Kester v. Sendoya, 123 AD3d 418, 418 [1st Dept 2014]). Because their doctors relied on plaintiff’s own medical records, moreover, defendants argue that they have “negate[d] a claim of any caused serious injury (sic) under the statute” (NYSCEF Doc. No. 20, 46) and “eliminate[d] all categories of the statute” (id., 48). In addition, defendants state that, standing alone, the MRI results are insufficient to satisfy plaintiff’s burden, and that plaintiff is unable to present any competent medical evidence of serious injury or causation. Moreover, they state that even if plaintiff shows that she sustained tears or bulges or required surgical treatment as a result of the accident, she cannot recover unless she proves that she suffers ongoing limitations.⁶ 2. Plaintiff’s evidence and arguments. In plaintiff’s response to defendants’ statement of material facts, plaintiff notes that defendants’ statement that her allegations are unsubstantiated is a contention rather than a statement of material fact (NYSCEF Doc. No. 38). She contends that defendant’s references to her medical records should not be included in a statement of material facts. She admits that she did not bleed after the accident and that she did not break any bones, but she challenges the relevance of these facts. She challenges the characterizations of her injuries, denies the statement that she can perform substantially all normal activities, and rejects the conclusions in defendants’ doctors’ reports. Plaintiff also submits her own affidavit (NYSCEF Doc. No. 40). In the document, plaintiff states that prior to the accident, she lived alone and with total independence, that she enjoyed her supervisory position at her former job. She also indicates that she was financially self-sufficient, that she did her own shopping and housekeeping, and that she “had a gym membership and an active social life” (id., 2). After the injury, she contends, it became impossible for her to work. She was fired in January 2019, and she attributes this to the mental and physical challenges she has faced since the accident. According to plaintiff, she spends her days either in her apartment or visiting the doctors and therapists who continue to treat her injuries. She stresses that she cannot go grocery shopping, do laundry, or clean her apartment due to her physical health. She describes her other alleged limitations, such as her inability to lift objects or to sit or stand for long stretches of time and her sensitivity to light. She states that two of her doctors have recommended shoulder and neck surgery, respectively, but that she is afraid the procedures may worsen her condition. Plaintiff submits the affirmations of two of her treating physicians. The first, Dr. Mehrdad Golzad, specializes in neurology, with a sub-specialty in electrodiagnostic medicine and brain injury medicine (NYSCEF Doc. No. 42). Dr. Golzad notes that he first treated plaintiff on July 12, 2018, a little over a month after her accident, in connection with her “complaints referable to a motor vehicle accident, particularly headaches, dizziness, cognitive difficulties, and daytime fatigue” (id., 4). The physiatrist who had treated plaintiff, Dr. Joyce Goldenberg, had referred plaintiff to Dr. Golzad. To facilitate his evaluation, the doctor conducted his mental status examination of plaintiff in French, plaintiff’s native language. Despite this, he states that plaintiff “had difficulties with visual spatial tasks, attention, memory, and recall” (id., 5). In addition, she had balance and equilibrium problems. Dr. Golzad concluded that plaintiff “suffer[ed] from post-concussion syndrome and TBI, with probable comorbid sleep apnea” (id. [footnote omitted]). Next, the doctor states that plaintiff underwent an MRI on July 23, 2018, and that the results were consistent with his preliminary diagnosis. Dr. Golzad’s affirmation states that he conducted “micro-structural imaging modalities by diffusion-tensor imaging (DTI), MRV, and Neuroquant,” all of which revealed abnormalities (NYSCEF Doc. No. 42, 6).⁷ He states that the “DTI revealed objective evidence of traumatic insults to the right centrum semiovale, a part of the brain that can be damaged in concussion/TBI” (id.). The Neuroquant showed that there was atrophy in the left posterior-superior temporal sulcus, another finding consistent with TBI” (id.). The MRV showed that there was a reduced blood flow to the left transverse sinus, which again was common in TBI cases. Following her July 23, 2018, diagnosis, plaintiff was treated regularly by physicians and a nurse practitioner in Dr. Golzar’s practice. Based on the records from his practice, the doctor concludes that plaintiff’s “cognitive difficulties have persisted through some four years of treatment, as have her complaints of headache⁸ — a common complaint in TBI — and other class TBI symptoms…” (id., 7). He concludes, with a reasonable degree of medical certainty, that plaintiff suffers from TBI, that her TBI was caused by the accident, that the condition is permanent, and that the condition limits her cognitive abilities. He further opines that these impairments “adversely affect the way she is able to live her life” (id., 8 [e]). Plaintiff also submits the affirmation of Dr. Emmanuel Hostin, an orthopedic surgeon who treated plaintiff between August 28, 2018, and January 28, 2020, for her shoulder pain. He states that, on plaintiff’s first visit, she showed a 35 percent loss of range of motion in her forward flexion, a 16 percent loss in her external rotation adduction, an 11 percent loss in her external rotation abduction, restricted motion as to her internal rotation, and a 5 percent loss in her abduction. “These figures, especially the forward flexion, described serious loss of range of motion of Ms. Fall’s shoulders,” he stated (id., 6). Dr. Hostin states that on September 25, 2018, he treated plaintiff again. Essentially, her condition had not improved. He recommended shoulder surgery for both of her shoulders. However, when he next treated plaintiff, on December 17, 2019, he learned that plaintiff had “cancel[ed] her surgery due to other ailments” (id., 7). Plaintiff still demonstrated serious loss of range of motion, and the doctor again suggested surgery. Plaintiff declined, concerned that because she lived alone, she would not get the assistance she needed. At plaintiff’s final appointment, on January 28, 2020, Dr. Hostin found that plaintiff’s right shoulder pain had increased. Due to this and her ongoing physical limitations, the doctor again recommended surgery. Plaintiff again expressed her hesitation. Shortly thereafter, the Covid pandemic made it impossible for her to undergo surgery. Dr. Hostin concludes, to a reasonable degree of medical certainty, that plaintiff’s shoulder injuries resulted from the car accident, and that the damage to plaintiff’s shoulders significantly limited her ability to use her arms and shoulders. For example, he notes that she would have great difficulty picking up objects or reaching items above her. He states that her condition between 2018 and 2020 had not improved. He opines that plaintiff’s body cannot “function like a normal human body because of the accident-related structural damage to her shoulders and the resulting pain” (id., 9 [b]). In her memorandum of law in opposition, plaintiff notes the high standard of review courts apply when they consider summary judgment motions. She implicitly concedes that, by themselves, some of the impacts of the accident do not qualify as serious injuries. However, she contends that two of her injuries satisfy the requirement, and therefore she can recover for all the injuries she has sustained. In particular, she relies on Insurance Law §§5102 (d), stating that her TBI qualifies as a “permanent consequential limitation of use of a body organ or member” (Insurance Law §§5102 [d]), and her shoulder injury is a “significant limitation of use of a body function or system” (id.). Plaintiff argues that Dr. Golzad’s affirmation and the accompanying medical records support her claim that she suffers from TBI. She points to the results of the DTI, MRV, and Neuroquant tests, and the accompanying balance issues, which could be attributable to a concussion. Plaintiff also notes that Dr. Golzad’s affirmation and supporting documents established that her difficulties persisted throughout her nearly four years of treatment. Plaintiff states that she went to Dr. Golzad’s office until her insurance stopped authorizing treatment. It appears that plaintiff last treated with Dr. Donna-Kay Hylton, a nurse practitioner at the office, on May 18, 2022 (see NYSCEF Doc. No. 43, *37). As plaintiff notes, Dr. Golzad opines that plaintiff permanently suffers from TBI, which was caused by the accident, and that plaintiff’s quality of life has been negatively impacted. In addition, plaintiff argues that the two experts who addressed plaintiff’s TBI for defendants — Drs. Erlanger and Doshi — are not persuasive. First, they contend that Dr. Erlanger continually opines that plaintiff deliberately performed poorly on the tests he conducted and that she manufactured her symptoms. Citing Perl v. Meher (18 NY3d 208, 219 [2011]), among other cases, she emphasizes that courts find it troubling when an expert accuses a plaintiff of malingering. Second, she notes that although Dr. Doshi reviewed and described plaintiff’s medical evidence, he omitted a discussion of plaintiff’s balance and the imaging studies, and he did not compare the results to the results of his tests or otherwise explain why the former should be disregarded. She agrees that her July 23, 2018, MRI does not show brain injury, but states that this is immaterial because, according to Dr. Golzad, TBI does not show up in an MRI. Plaintiff points out that Dr. Doshi acknowledges that the DTI shows traumatic insults to plaintiff’s brain, but that he rejects the evidence because the positioning of the scan “can result in a FA value that is artificially decreased” (NYSCEF Doc. No. 30, *30). Plaintiff notes that this does not refute the DTI results but rather suggests that it might be wrong. As for the doctor’s comment that the DTI “is not considered routinely reliable in standard practice” (id.), plaintiff contends that the doctor relies on outdated data. She notes that in a Florida Circuit Court case in 2019, the court found that the use of DTI to diagnose TBI was generally accepted by neuroradiologists (NYSCEF Doc. No. 45 [Sutter v. Youngman, 7th Judicial Cir, FL, Feb. 25, 2019, Weston, J., No. 2014-11664 CIDL Div]). Plaintiff argues that Dr. Doshi’s determination that the Neuroquant result is a statistical anomaly merely reflects an opinion that is at odds with that of plaintiff’s treating physician. Plaintiff notes that Dr. Doshi ignores plaintiff’s MRV result, which Dr. Golzad found to show a symptom of TBI. Plaintiff also contends that there is objective evidence that plaintiff has sustained a serious injury to her shoulders — specifically, a significant limitation of the use of her shoulders and her arms. She points to her July 13, 2018, MRI, which showed labral tears and tendinosis (NYSCEF Doc. No. 46),⁹ along with Dr. Hostin’s medical records (NYSCEF Doc. No. 49). Dr. Hostin also noted that his tests showed plaintiff’s ongoing limitations in her flexion and rotation. Plaintiff stresses that Dr. Hostin opined that plaintiff’s accident caused these limitations, which significantly limit her ability to use her arms and shoulders. Additionally, plaintiff points out that, under Insurance Law §5102 (d), she need not establish that the limitation is permanent. Here, plaintiff notes, Dr. Hostin’s records indicate that plaintiff received treatment for at least 17 months, and plaintiff has stated that her shoulder problems have not improved (NYSCEF Doc. No. 37, *21 n 12). According to plaintiff, the affirmations of the two defendants’ experts who evaluated plaintiff’s shoulder injuries raise issues of fact that this court cannot resolve by means of summary judgment. 3. Defendant’s reply. In reply, defendants argue that plaintiff’s counterstatement of material facts is inadequate, and therefore, the court must accept all the allegations in their statement of material facts as true. They state the accident report cannot be considered as it is not certified, and that the medical reports must be disregarded as uncertified as well. They state that the MRI reports cannot be considered because they do not address causation and because they are not sworn statements. Also, defendants raise several arguments that challenge the substance and value of the treating doctors’ affirmations. They state that Dr. Golzad did not sufficiently consider alternative theories that might explain plaintiff’s TBI and did not adequately address causation. 4. Analysis. The court rejects defendants claim that the court must accept their statement of material facts in its entirety because of plaintiff’s failure to cite to exhibits in support of each paragraph in her statement. The rule on which they rely, 22 NYCRR 202.8-g (a), gives the court the discretion to require the statement (see Munoz v. JDS Seagirt LLC, 76 Misc 3d 1230 [A], 2022 NY Slip Op 51086 [U], *4 [Sup Ct, NY County 2022]). This Part does not require a statement of material facts (part22-rules.pdf [nycourts.gov]; see Carney v. Schoenherr, 76 Misc 3d 285, 287 n 1 [Sup Ct, Hamilton County 2022]). In addition, even where the counterstatement is required and is not provided or is inadequate, the court retains the discretion not to deem the facts admitted (Abreu v. Barkin & Assoc. Realty, Inc., 69 AD3d 420, 421 [1st Dept 2010]; see On the Water Prods., LLC v. Glynos, 211 AD3d 1480, 1481 [4th Dept 2022]). Plaintiff discusses the facts sufficiently in her papers and cites to the pertinent documents in her opposition papers (Abreu, 69 AD3d at 421). Therefore, the court does not consider whether the counterstatement was sufficient. The court rejects defendants’ position that it must disregard plaintiff’s doctors’ testimony because they are not affidavits. Under CPLR §2106, the affirmation of a physician board-certified in New York is sufficient if the doctor affirms the truth of her or his statements under the penalty of perjury (see Vishevnik v. Bouna, 147 AD3d 657, 659 [1st Dept 2017]). Here, both of plaintiff’s treating doctors affirmed the truth of their statements under penalty of perjury (NYSCEF Doc. No. 46, *1; NYSCEF Doc. No. 48, *1). Therefore, the affirmations satisfy CPLR §2106. Third, defendants’ challenges to the adequacy of plaintiff’s medical submissions largely fail.¹⁰ Defendants state that Dr. Golzad and Dr. Hostin’s records must be disregarded because the custodians of records did not swear to their accuracy under penalty of perjury. However, Irizarry v. Lindor (110 AD3d 846, 847 [2d Dept 2013]) and Rickert v. Diaz (112 AD3d 451, 452 [1st Dept 2013]), upon which defendants rely, involve situations where the doctors’ reports and opinions were not properly affirmed. Although the court cannot locate a certification for Dr. Hostin’s records, there is a certified verification of treatment signed by the doctor and accompanied by the medical records, which are the claims he submitted for insurance purposes (NYSCEF Doc. No. 49, *1-4), and Dr. Golzad’s records are sworn (NYSCEF Doc. No. 43, *4). The court agrees that unsworn MRI reports do not comprise evidence sufficient to defeat a summary judgment motion when considered by themselves (see Schifano v. Golden, 268 AD2d 335, 335 [1st Dept 2000]). Therefore, the separate exhibits containing the MRIs are not proper evidence. However, both doctors submit copies of their medical records (NYSCEF Doc. Nos. 42, 49). These records contain the MRI reports on which they relied. As explained above, Dr. Golzad’s reports are certified and Dr. Hostin attested to the accuracy of his evaluation and medical records. Further, the doctors’ affirmations, which evaluate the tests and clinical findings, do not rely solely on “plaintiff’s subjective complaints,” and thus they are of evidentiary value (Schifano, 268 AD2d at 335).¹¹ The court also finds that DTI results may be considered in a summary judgment motion. It notes that a few older cases in this State have found that DTI is not generally accepted (e.g., Brouard v. Convery, 59 Misc 3d 233, 237 [Sup Ct, Suffolk County 2018]). However, in the recent case, Lee v. Troge (74 Misc 3d 1213 [A], 2022 NY Slip Op 50119 [U], *5 [Sup Ct, Dutchess County 2022]), the court considered the testimony of several experts and concluded that, today, DTI “is a reliable and accepted diagnostic tool within the scientific medical community.” Moreover, in Tardif v. City of New York, No. Index No 13-CV-4056 [KMW], 2022 WL 2195332, *6, 2022 US Dist LEXIS 108618, *18 [SD NY 2022]), the United States District Court for the Southern District of New York noted that “[j]udges in at least twelve judicial districts…have consistently held the use of DTI to diagnose brain injury to be reliable, helpful, and admissible.” Next, the court turns to the more substantive allegations. Defendants have satisfied their prima face burden through the submission of their expert reports of Drs. Rubenstein, Roth, Erlanger, Doshi, and Deyer as well as through the records from Harlem Hospital (see Pauling v. City Car & Limousine Servs., Inc., 155 AD3d 481, 481 [1st Dept 2017]). This shifted the burden of proof to plaintiff (see Lindo v. Brett, 149 AD3d 459, 462 [1st Dept 2017]). In opposition, however, plaintiff raised issues of fact regarding TBI. In addition to the tests that defendants discuss, Dr. Golzad notes that plaintiff’s Montreal Cognitive Assessment (MoCA)¹² score was 23, and showed problems relating to construction, arithmetic, verbal fluency and reasoning, and memory.¹³ In subsequent tests, which were performed by members of the doctor’s practice on October 25, 2018, January 28, 2019, and April 11, 2019, plaintiff’s MoCA score remained consistent.¹⁴ The doctor concluded that there was a causal relationship to the accident, as there is no evidence of any preexisting mental problems, and this precludes summary judgment as to plaintiff’s TBI (see Marcelo v. Fabius, 195 AD3d 472, 473 [1st Dept 2021]). As plaintiff has shown sufficient evidence of TBI, it is not necessary to determine the adequacy of evidence as to her shoulder injury. If plaintiff prevails on that claim at trial, she will be able to recover damages for all her injuries, even if they are not “serious” within the meaning of the statute (see Lamar-Vaterpool v. Devora, 200 AD3d 421, 421 [1st Dept 2021]). However, Dr. Hostin examined the relevant MRIs and conducted his own tests to determine plaintiff’s range of motion in her shoulders. Among other things, he thoroughly explained the test results that related to plaintiff’s loss of flexion. Dr. Hostin opined that plaintiff’s range of motion was significantly limited in 2018, not long after her accident, and that it had not improved when he examined her in 2019 and 2020 (see Moon v. Some, 189 AD3d 628, 629 [1st Dept 2020]). He also causally connected these problems to plaintiff’s accident. Though this evidence is not as strong as the evidence connected to plaintiff’s TBI, the court concludes that it is sufficient to withstand summary judgment. Defendants’ argument that plaintiff’s treating physicians did not adequately address causation because they did not oppose their experts’ theories of causation is not persuasive. An opposing expert affirmation raises an issue of fact concerning causation when it presents another, legally sufficient cause for the injuries (see Lindo, 149 AD3d at 462). Here, plaintiff’s experts “addressed defendants’ expert’s findings of degeneration by opining that the injuries to the otherwise asymptomatic plaintiff were consistent with and causally related to the accident” (Pauling, 155 AD3d at 481). Where there are conflicting expert affirmations, summary judgment must be denied (Severino v. Weller, 148 AD3d 272, 276 [1st Dept 2017]; see Appleyard v. Tigges, 212 AD3d 515, 516 [1st Dept 2023]). Further, defendants’ experts’ testimony is not dispositive. The degenerative conditions on which they rely relate to plaintiff’s back and spine, not to her shoulders or her cognitive abilities. Thus, they are more relevant to other of plaintiff’s claimed injuries. Dr. Rubin’s and Dr. Erlanger’s statements that they did not believe plaintiff and/or that she exaggerated her symptoms relates to her credibility. Not only is this not within the doctors’ purview as experts, but it raises a question properly left to the factfinder at trial (see Perl, 18 NY3d at 219; Konstantinov v. MTLR Corp., 106 AD3d 1055, 1055 [2d Dept 2013]). In addition, despite his skepticism about her current condition, Dr. Roth found that plaintiff’s past medical history did not contribute to her current problems. Dr. Erlanger’s statement that plaintiff functions independently is inconsistent with his acknowledgement that she cannot do her own shopping, housekeeping, or laundry, that she cannot manage her medication or her schedule, and that she needs assistance when she pays her bills (see NYSCEF Doc. No. 27, p 28 lines 12-21). He also indicates that other doctors found evidence of postconcussional disorders, memory, and other mental health problems. These comments also show that the doctors’ reports are not conclusive. Defendants’ reliance on plaintiff’s statements at her deposition also are not persuasive. The facts that she did not bleed after the accident and did not break any bones are not relevant, as plaintiff does not allege otherwise. Although, as defendants stress, plaintiff uses the stairs in her walkup building, they omit her statements that it remains difficult for her to do so, that she “take[s] it slowly,” and that she holds onto the railing for support (id., p 26 lines 16-17, 21-23). In addition, plaintiff notes that Dr. Hostin recommended shoulder surgery to her on two occasions (see id., p 91 lines 6-18). This is consistent with the doctor’s own report. Plaintiff’s affidavit in support further supplements her allegations regarding the dramatic changes to her lifestyle and capabilities. The court has considered all the parties’ arguments in support of and in opposition to summary judgment. For the reasons above, it is ORDERED that the motion is denied; and it is further ORDERED that within 30 days of entry, movant shall serve a copy of this Decision and Order upon Plaintiff with notice of entry. This constitutes the Decision and Order of the Court. Dated: March 6, 2023