Aniel Sanchez Nivar, Claimant, v. The State of New York, Defendant. (2026)

This Court, having presided over the instant trial on March 18, 19 and 20, 2026, heard the testifying witnesses, examined the pleadings and exhibits in evidence, listened to the arguments raised by counsel during trial, and perused the post-trial memoranda of law, hereby makes the following findings of fact and conclusions of law.

I.

By Claim filed February 6, 2023, Claimant, Aniel Sanchez Nivar (hereinafter "claimant"), commenced the instant action against Defendant, the State of New York ¹ (hereinafter "State"), to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident, on December 30, 2022, at 8:24 a.m., when his parked car was struck from behind by a State vehicle operated by an employee of the New York State Office for People with Developmental Disabilities. Claimant allegedly sustained serious injuries to his cervical spine, lumbar spine, and left shoulder as a result of the accident. In response, by Verified Answer filed on March 20, 2023, the State denied certain of the allegations in the Claim and interposed thirteen affirmative defenses, including that Workers' Compensation Law benefits are claimant's sole remedy as he was injured during the course of his employment, and that he did not sustain a serious injury under Insurance Law § 5102 (d).

Pursuant to a Preliminary Conference Order dated June 15, 2023, the Claim proceeded to discovery proceedings and was bifurcated for trial on the questions of liability and damages. Discovery concluded and a Note of Issue was filed on February 25, 2025. This Court held the liability portion of the trial on June 16, 2025, and rendered a decision on the record in open court finding that the State driver was negligent and the sole proximate cause of the accident. By Order Directing Judgment filed June 30, 2025, the Court (Vargas, J.) found the State to be 100% liable for the accident, attributing no comparative fault to claimant. The Court encouraged a settlement between the parties but was ultimately unsuccessful.

Consequently, the Court presided over an in-person trial on March 18, 19 and 20, 2026, on the issues of serious injury (see Insurance Law § 5102 [d]), and damages. Before the opening of the trial, the State moved to preclude claimant from offering into evidence new medical reports and testimony by claimant's long-term treating physician, Dr. Boleslav Kosharskyy, to the effect that claimant had consulted him that same week on March 16, 2026, for continuing treatment, tests and a new diagnosis of sacroiliitis. After oral argument, the Court sustained the State's objection and precluded the new reports from going into evidence on the ground that the proposed reports would include injuries not set forth in the Bill of Particulars, but the Court permitted limited testimony as to that visit.

With the assistance of a court-certified Spanish interpreter, claimant was the first witness to testify as to the circumstances of the accident, his personal injuries, medical treatments, and related surgery as well as their impact on his life, and called one expert witness to support his claim for damages: Dr. Boleslav Kosharskyy, his treating physician and a board-certified anesthesiologist. To support its argument that claimant failed to establish both serious injury and a causal nexus to the accident, the State called as its witness, Dr. Andrew N. Bazos, a board-certified orthopedic surgeon, who conducted an Independent Medical Examination ("IME") of the claimant. During the trial, the following exhibits were entered into evidence, on consent: claimant's exhibits 1-6 and 9, and State's Exhibits A to Z, AA and BB.

II.

The trial began on March 18, 2026, with the testimony of claimant, a 37-year-old Bronx resident, who testified that he has been married for ten years and has worked as a taxi driver for Uber and Lyft since 2019 (see Transcript ["Tr."] 3/18/26 at 29-30). As a driver of a 2015 Toyota Camry, he testified to working long hours seven days a week from 5:00 a.m. to 5:00 p.m., earning around $2,300-$2,400 per week (id. at 30, 94). Despite this grueling schedule, he noted that he was healthy and never had any neck, shoulder or back problems (see id. at 30-31). Claimant narrated that on December 30, 2022, at 8:25 a.m., he was involved in the subject accident while he was sitting in his parked car without seatbelts enjoying his breakfast for around ten minutes, when he felt a "strong" impact to the rear of his vehicle (id. at 31, 32). He testified that his body moved forward and left with his left shoulder hitting the steering wheel and that it took him "two minutes to get out of the" car to determine that a State white van had hit him (id. at 32). His car's left-side back bumper and taillight were broken (see id. at 33).

Although he "did not feel any pain" right after the accident, claimant testified that later that evening, he went to Montefiore Hospital because he started experiencing pain in his left shoulder, neck, left leg and spine (id. at 34). The Emergency Room Report states that they completed some tests on claimant but that he was not hospitalized and was released home the same day, recommending Tylenol for the pain (see id. at 34; Exh. 1). Over two weeks thereafter, claimant testified that the pain continued, prompting him to go to Interventional Physical Medicine & Rehabilitation, P.C. (hereinafter "Interventional") in the Bronx on January 18, 2023, and engaged in a series of treatments involving electrotherapy and physical therapy for his neck, back and shoulder, and was ordered Magnetic Resonance Imaging tests ("MRI") (see id. at 35, 36); he stressed that he had never taken an MRI, x-ray or CT scan prior thereto. At Interventional, claimant was treated by Dr. Kosharskyy for pain management and the doctor initially tried to manage claimant's pain with a series of injections to his back, neck and lower back (see id. at 35-36). Although the MRIs did not indicate severe trauma or broken bones, claimant testified that they showed "swelling in the disc" in the "lower and upper" back and the doctor prescribed pain injections for those (id. at 36).

With the passage of time, claimant explained that medications and injections had not subsided his neck pain, prompting Dr. Kosharskyy to recommend surgery for his neck and he performed a percutaneous discectomy procedure to claimant's neck on June 22, 2023 at a surgical center (see id. at 37, 39, 74). Following the surgery, he went to doctor's visits once a month, during which he received more injections to the lower back, but does not remember what other parts of the body (see id. at 38, 39, 41). While he stopped seeing Dr. Kosharskyy for over one year, the last time he saw him was the Monday prior to the trial on the advice of counsel and got a radiography of his lower back and an injection (see id. at 41). Sometime in 2023, he also saw a separate doctor, Dr. Katzman, for his left shoulder and received injections for the pain which helped for a short period but stopped being effective and he ceased visiting that doctor in 2023 (see id. at 42-43). Claimant then testified that he didn't return to work until two weeks after the accident but then continued to experience "weakness or feeling tired" in the neck and pain in the lower back (id. at 43-44). His work hours decreased significantly, according to him, because he could not remain sitting for long periods of time, reducing his take home wages to between $1,300 to $1,400 weekly (id. at 44, 94).

According to claimant, his life activities were affected after the accident as he cannot stand for long periods of time, can no longer play basketball, exercise or even "tie his shoe laces" without back pain (id. at 44-45). He reiterated that he cannot work for as long as before or help his wife with the house chores, like shopping for groceries, mopping, cleaning the bathroom or moving the furniture (see id. at 45). This prompted him to hire housekeepers who deep clean their house every other month, paying them $150-200 each time (see id. at 45, 46). He confided that he "cannot perform the same [intimate] activities" with his wife because of his shoulder and back problems (see id. at 46). Currently, he continues to have lower back and shoulder pain and his neck "feels tired constantly" (id. at 46). He complained that his life has changed because he can no longer provide for his household, be with his wife or enjoy a normal life as he could before (see id. at 46, 48).

On cross-examination, claimant testified that he was working for Lyft at the time of the accident, "was parked correctly" and was not wearing his seatbelt because he was having breakfast (id. at 49-50, 51, 52). Claimant affirmed that he did not suffer a concussion, and there was no blood, redness and no bruises in his body after the accident (see id. at 58). None of the Camry's airbags deployed as a result of the accident, and according to claimant, the car possesses a "driver seat with power lumbar support," which he knew about and controlled, as well as a seat headrest "at the level of [his] head" (id. at 58, 59, 60, 61, 62, 71).

He acknowledged that the New York Department of Motor Vehicle's Police Accident Report dated December 30, 2022, states that "another vehicle sideswiped [his] left rear bumper" and there were "no injuries," and the signed portion - which he denied signing - asserts that he "didn't suffer any injury" (id. at 53-54, 56; Exh. A, M). Although there were two hospitals within walking distance from the accident site, claimant testified that he did not go to any hospital right after the accident or even 40 minutes later (see id. at 56). He explained that he didn't feel the injuries because his "body was caliente" or "warm," but that around 7:00 p.m. he went to the hospital because his body started to hurt (see id. at 69, 93-94). Although he testified to having issues moving his head back and forth with pain in the neck at Montefiore Hospital, he acknowledged that the Hospital's records do not reflect that he complained about any neck pain (see id. at 71, 72, 81).

Since the accident date, claimant stated that he has not visited any hospital for anything related to the accident, but only to therapy sessions at the doctor's office. He had the neck procedure in 2023 in a medical clinic, not a hospital, and was "put to sleep" but didn't require an overnight stay or any payment (see id. at 74-75). He explained that he saw the doctor after the procedure to remove his bandage in front of his neck, but there were no stitches to remove (see id. at 75, 76, 77). After the procedure, claimant affirmed that his neck feels better, albeit sometimes feels "heavier" and "tiredness," and a medical report reflects that in September 2023, claimant's "neck pain had subsided significantly" (id. at 78, 79). While claimant testified about going to physical therapy three times a week shortly after the accident in December 2022, the medical records reveal that later he went only sporadically and once a month in April, September and October of 2023, for a total of 21 visits up to October 2023 (see id. at 84, 85; Exh. 3).

By December 2023, months after the neck procedure, claimant testified that he was feeling "a little bit better" with the neck's motion range tests within normal ranges but now claims that "the tired feeling of the body still continued" (id. at 86, 87). Indeed, he did not have any therapy or pain injections in 2024 or 2025, nor January or February 2026; he went to the doctor only recently prior to the trial in March 2026 (id. at 91-92). He confirmed not taking any prescribed medications in either 2024 or 2025, only Tylenol when needed for his pain (id.).

The next witness to testify on March 19, 2026, was the State's stipulated expert witness, Dr. Andrew Bazos, who testified - out of term on consent — that he completed his undergraduate studies at Harvard University, his medical degree at Yale Medical School and his specialty on orthopedic surgery at Columbia Presbyterian Hospital and Harvard Medical Center (see Tr. 3/19/26 at 8). As a board-certified Orthopedic Surgeon, Dr. Bazos attends an average of fifty to sixty patients in his office a week and performs three to ten surgeries weekly (id. at 8). He mostly performs surgeries to extremities, shoulders, and hips, but he sees approximately twenty percent of patients for spinal injuries and traumas in his practice (see id. at 11). He has worked for thirty years in the emergency room where claimant was evaluated and examined claimant once (see id. at 17).

Dr. Bazos explained that x-rays of the spine are a one-dimensional shot of the "bony structure that surrounds the spinal cord," whereas MRIs of the spine show a three-dimensional image of bones and soft tissues, including discs, nerve roots, and the cartilage between bones and spine (id. at 12, 13). Doctor Bazos testified that claimant's MRI three weeks after the accident was "completely uniform" and showed "absolutely no evidence of trauma to any of the structures" or any "disc injury" (id. at 15, 17). He found that the three "bulging discs" on claimant's neck MRI did not compress the spinal cord and would routinely appear on virtually everyone over the age of twenty years old (id. at 16). According to Dr. Bazos, a bulging disc or herniated disc, is any disc "outside of the normal circle" (id. at 23). He explained normal wear and tear from walking, lifting weights, and moving causes the discs to lose fluid and herniate, and that this can be asymptomatic (see id. at 26, 27). In contrast, he described a herniation caused by trauma as a disc popping out in one area of the spine, like a spur or a petal coming out (see id. at 23, 24). He opined that claimant's MRI did not show any traumatic herniation (id.).

Dr. Bazos' IME revealed that claimant had no abnormalities in the motion of the spine or the function of the muscles served by the spine nerves (see id. at 28). The doctor testified that the EMG (Electromyography) and NCV (Nerve Conduction Velocity) tests done in February 2023, showed no evidence of cervical radiculopathy, or nerve compression in the neck (see id. 30, 31). He explained that these tests use electricity to measure whether a "nerve is getting squeezed in the spine" (id. at 30). The doctor opined that the nerve compression at claimant's elbow shown by the test comes from a lot of physical work and has "nothing to do with the neck or this accident" (id. at 30). He found no medical necessity for the minimally invasive procedure known as a percutaneous discectomy ² performed on claimant, claiming such discectomies had no peer-reviewed studies to support their use, and that doctors should instead perform open discectomies (see id. at 32, 33, 51).

Within a reasonable degree of medical certainty, Dr. Bazos opined that there was no objective evidence in his examination, medical records, or the MRIs that any "mechanical damage had been done to the structures" in the neck, back, or left shoulder (id. at 22). According to him, the emergency room staff did not perform any MRIs, x-rays, or CT scans of claimant's neck because there were no visible injuries or history of problems with his cervical spine (see id. at 18). Dr. Bazos concluded that the claimant showed a neck "sprain or strain" only, as the emergency room staff were able to manipulate and move his neck in a normal, full range of motion (see id. at 17, 22).

The doctor also testified regarding injury to the lumbar spine. He explained that the MRI showed no nerve disruption in the lower back (see id. at 37). According to Dr. Bazos, the straight leg raise test revealed that claimant had a "full range of motion," no issues walking, and no nerve compression (id. at 37, 38). He opined that the accident caused no permanent disability to claimant's lumbar spine (see id. at 35, 36). At most, he claimed that the accident caused a minor "sprain [or] strain" to the lumbar spine based on claimant's complaint of low back pain (id. at 35). Similarly, regarding the left shoulder, Doctor Bazos found a completely normal range of motion in his examination (see id. at 39). The MRI also revealed a "completely normal [left] shoulder devoid of any acute trauma" and a normal range of motion, thus concluding that there were "no objective findings of any mechanical damages to the left shoulder" (id. at 40).

On cross-examination, Dr. Bazos stated that he based his IME report on his examination, records, diagnostic studies, imaging, his own experience, and the treating doctors' diagnoses (see id. at 54). He admitted to finding decreased sensation in claimant's lower left arm and lower left leg, paraspinal tenderness in the lumbar area bilaterally, and diffuse tenderness of the left shoulder; however, Dr. Bazos clarified that these subjective findings did not correlate with any known anomaly and "ma[de] no sense" (id. at 53). He acknowledged that a disc could herniate due to trauma, but that claimant's herniations were "non-traumatic" (id. at 54).

The State, on redirect examination, asked Dr. Bazos about claimant's break in treatment beginning March 2025. The doctor opined that a break "is a good indication" that claimant no longer needed treatment (id. at 56). The Court also questioned Dr. Bazos on the percutaneous discectomy, which he explained that it was not a "surgery" because surgery involves an incision with a complex closure, whereas percutaneous discectomy does not even require a stitch to close (see id. at 65). He further explained that claimant had nothing to treat on his neck, so this procedure had no effect on the patient's symptoms. In fact, the doctor claimed that the procedure was like "fixing a watch through a keyhole," and that it was "not an acceptable procedure in the orthopedic spine community" (see id. at 67).

On the last trial day, March 20, 2026, the final witness to testify was claimant's expert witness, Dr. Boleslav Kosharskyy, an anesthesiologist and pain management physician (see Tr. 3/20/26 at 6). Educated in Germany at the Free University of Berlin Medical School in 1997, he completed a research fellowship at Harvard School of Medicine, an anesthesiology residency at Boston University Medical Center, and an interventional pain medicine fellowship at Upstate University Hospital in Syracuse (see id. at 7). Certified by the American Board of Anesthesiology, he treats patients with chronic painful conditions in his private practice (see id.). Dr. Kosharskyy testified that claimant had been his patient since 2023, when he first complained of neck pain, back pain, and left shoulder pain (see id. at 8).

Dr. Kosharskyy's physical exam of claimant on April 12, 2023, revealed tenderness and a "restricted range of motion" in the paraspinal muscles of the cervical and lumbar spine, diminished sensation, diminished reflexes, heightened nerve sensitivity, muscle spasms, and cervical spine compression (id. at 9). According to the doctor, the cervical spine MRI showed "strengthening" of normal cervical lordosis, and multiple disc herniations (id. at 10). He opined that the MRI of the cervical spine revealed a herniation rather than a disc bulge because both the rim and the interior of the disc pushed into the spinal cord (see id. at 20-21). Dr. Kosharskyy explained that it was a "medical necessity" and the next "logical step accepted by the medical community" to perform claimant's percutaneous discectomy surgery to decompress the pressure of the protruding disc because prior physical therapy, medical management, and injections only provided temporary relief to claimant (id. at 12, 13, 14, 30). Furthermore, Dr. Kosharskyy testified that his March 10, 2023, examination revealed issues with claimant's cervical range of motion: 35 degrees flexion (60 is normal), 30 degrees extension (45 is normal), 40 degrees right lateral rotation (80 is normal) and 42 degrees left lateral rotation (80 is normal) (see id. at 26; see Exh. 5). However, the doctor explained that he follows the guidelines of Workers' Compensation in New York and the American Medical Association guidelines rather than those of the North American Spine Society (see id. at 57), which rely more on the patient's subjective pain complaints. The most recent examination by him in 2026 revealed ongoing pain originating from the sacroiliac joint on the right and he injected the joint to provide pain relief (see id. at 29).

Moving on to the lumbar spine, Dr. Kosharskyy testified that the MRI revealed disc herniations protruding toward the spinal canal and impinging the nerve roots of the spine (see id. at 11, 24). His range of motion examination of the lumbar spine revealed significant restrictions: 40 degrees flexion (90 is normal), 12 degrees extension (30 is normal), 15 degrees right lateral flexion (25 is normal), 10 degrees left lateral flexion (25 is normal), 18 degrees of right rotation of lumbar spine (30 is normal), 15 degrees of left rotation of lumbar spine (30 is normal) (see id. at 26, 27). Dr. Kosharskyy opined these are "significant limitations" to both the lumbar and cervical spine, because more than a twenty percent reduction in any range of motion is considered significant (see id. at 27, 28).

Because claimant was asymptomatic before the accident, Dr. Kosharskyy opined with a reasonable degree of medical certainty that claimant sustained permanent damage to both his cervical and lumbar spine from the accident that rendered him more susceptible to further deterioration (see id. at 11, 12). He opined that the injuries stemming from the accident are permanent, because claimant still complains of significant pain and limitations despite the unsuccessful treatments provided (see id. at 28, 30). According to Dr. Kosharskyy, claimant finds it difficult to sit or stand for prolonged periods of time or to bend, Lyft heavy objects, or perform any manual work (see id. at 28), leading him to opine that claimant would need lifelong treatment to manage the symptoms (see id. at 29).

Relevantly, Dr. Kosharskyy opined that the MRI films showed degenerative changes but that they were "age appropriate" (see id. at 31). A motor vehicle accident could have herniated a degenerated disc more easily than a healthy disc (see id. at 33). The doctor also explained that gaps in treatment occur when a treatment does not work and the patient gets tired and loses hope (see id. at 29). He opined that claimant stopped coming because there was "nothing else to offer" him after failed injections, therapy, and surgery (see id. at 30). Dr. Kosharskyy explained that a delay in reporting pain for "hours, sometimes even days" is consistent with a traumatic event because shock creates a high level of catecholamines like adrenaline and hormones in the blood, which diminish pain (see id. at 32).

On cross-examination, the State suggested Dr. Kosharskyy had a monetary interest in performing the surgery on claimant and pressed him on his justification for performing surgery (see id. at 34). He affirmed that percutaneous discectomy was a spine surgery accepted by guidelines of the American Medical Association but not considered an orthopedic surgery (see id. at 36). The doctor admitted that claimant had not had therapy specifically to the cervical spine before surgery; however, he clarified that remaining pain after "any kind of conservative treatment for more than five weeks" was a sufficient reason to perform surgery (see id. at 37, 38). While the doctor admitted that claimant did not take any prescription medication, he justified the surgery based on factors such as persistent complaints and a significant impairment to claimant's ability to work and perform daily activities after five weeks (see id. at 39).

Dr. Kosharskyy acknowledged that claimant had painless, normal range of motion of the cervical spine at the emergency room but clarified that trauma often delays pain (see id. at 39). When pressed on the report signed by Dr. Nicolas El-Khoury in September 2023, indicating that Dr. Kosharskyy cleared claimant to return to work as tolerated, Dr. Kosharskyy stated that he could not speak to another doctor's report (see id. at 42). Dr. Kosharskyy acknowledged that he had not reviewed the records from the physical therapist's examination and expressed doubt that the physical therapist had found a normal range of motion (see id. at 40, 41; see Exh. 3). The doctor admitted that he did not know for certain why claimant took a break from treatment (see id. at 43).

The State then questioned the doctor on the force exhibited by the impact of the car, and the doctor admitted that he did not know how fast the car was going (see id. at 43, 44). He clarified treatment did not depend on speed, and that even five-mile-per-hour accidents can cause "significant damage to the spine" (see id. at 44). When the State questioned him about the presence of a seatbelt, Dr. Kosharskyy opined that even without a seatbelt, claimant would have sustained similar injuries, and he would have prescribed the same treatment (see id. at 47). He did admit, however, that the presence of a seatbelt or the deployment of airbags was a significant factor in the injury (see id. at 48). When pressed on the negative EMG test, the doctor agreed that claimant's test revealed no radiculopathy symptoms (see id. at 49). According to the doctor, however, the test was done prematurely because it takes time for the nerves to show damage signs, opining that claimant's test was a false negative (see id. at 49, 50, 52). Instead, he explained that he performed surgery based on the positive MRI, the physical examination, and claimant's ongoing complaints (see id. at 50, 51). Dr. Kosharskyy acknowledged that the MRI does not show any objective findings of acute traumatic injury upon claimant (id. at 54). He admitted uncertainty as to whether the disc issue at C5-C6 preexisted the accident (id. at 53, 58).

The Court then questioned Dr. Kosharskyy, who explained that the emergency room records revealed no middle spinal pain but revealed pain to the muscles on both sides of the spine (see Exh. 1). The doctor also opined that claimant's degeneration was adequate for his age and was not caused by his occupation (see id. at 67). Doctor Kosharskyy admitted that guidelines state that two months after the incident is appropriate for an EMG/NCV test, but that in his experience, six months is better (see id. at 67, 68). According to the doctor, pushing to complete the entire range of motion could inflict injuries, so the Workers' Compensation set forth a guideline to do measurements until the patient says he cannot go any further (see id. at 70).

Upon recross, the State asked about Dr. Kosharskyy's recommendation in March 2025 for claimant to undergo percutaneous neuromodulation therapy and trigger point injections, but the patient did not show up for either appointment (see id. at 75). When pressed on the subjectivity of the range of motion test, he admitted that there was a subjective component but clarified that "any physical examination test would have some degree of subjectivity" (see id. at 77). He admitted that patients could purposely distort the results of range of motion test (see id. at 78).

At the conclusion of Dr. Kosharskyy's testimony, both parties rested their case. The Court reserved decision and afforded the parties time to obtain the transcripts and submit written post-trial summations by May 15, 2026, which were timely received by Chambers. In its Post-Trial Memorandum of Law, the State moves for a directed verdict dismissing the Claim as a matter of law, pursuant to CPLR 4401, summing up that claimant failed to prove a serious injury with objective medical findings under Insurance Law § 5102 (d), but rather that the medical records establish that claimant suffered from significant degenerative findings not causally related to the accident. Among other things, the State notes the photographic evidence of the slight impact and minor damage to his car, the lack of evidence as to the seriousness of the shoulder injury, and the unexplained cessation of the claimant's treatments. The State further maintains that Dr. Kosharskyy failed to reconcile his findings of serious injuries with the conclusions of Dr. Bazos, who found only degenerative disease.

In his written summation, the claimant maintains that there was ample evidence of permanent and severe injuries disrupting his life that were causally related to the accident, as strongly testified by him and Dr. Kosharskyy. The claimant argues that the gap in treatment can be easily squared with the plateau reached on his treatments and asks for significant damages.

III.

The claimant is seeking damages for injuries to his cervical spine, lumbar spine and left shoulder as a result of the accident. New York's No-Fault Law (see Insurance Law § 5101, et. seq.) was enacted to "significantly reduce the number of automobile personal injury cases litigated in the courts" by limiting the "unfettered" common-law right to sue for injuries sustained in motor vehicle accidents (Licari v Elliott, 57 NY2d 230, 236-237 [1982] [internal quotations omitted]; see Pommells v Perez, 4 NY3d 566, 570-571 [2005]). The No-Fault Law provides that, in order for a claimant "to bring an action for 'non-economic loss' i.e., pain and suffering, he or she must demonstrate [a] 'serious injury' " under at least one of the categories set forth in Insurance Law § 5102 (d) (Poole v State of New York, 68 Misc 3d 1218[A] [Ct Cl, McCarthy, J. 2020], citing Lamana v Jankowski, 13 AD3d 134, 136 [1st Dept 2004]; see Insurance Law § 5104 [a]; Pommells v Perez, 4 NY3d at 571). In relevant part,

" 'Serious injury' means a personal injury which results in . . .; significant disfigurement; a fracture; . . .; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system. . ." (Insurance Law § 5102[d]).

To show a permanent loss or consequential limitation of use of a body organ or member, claimant must present competent medical evidence of continuing and permanent disability or limitation of use as a result of the accident (see Perl v Meher, 18 NY3d 208, 217 [2011]). It must also be demonstrated that the injury is important or significant (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 357 [2002]). "The chief difference between the Significant Limitation and the Permanent Consequential Limitation categories, is that, under the Significant Limitation category, the limitation is not required to be total or permanent (Decker v Rassaert, 131 AD2d 626, 627 [2d Dept 1987])" (Poole, 68 Misc 3d at 16). Furthermore, to meet these criteria, the Court of Appeals has held that the plaintiff/claimant is "required to demonstrate restricted range of motion based on findings both contemporaneous to the accident and upon recent findings" (Perl at 217 [internal quotation omitted]).

Courts have held that curtailed performance of customary daily activities and subjective proof of pain, combined with the objective proof of a significant, permanent loss of range of motion by a medical expert, are sufficient to demonstrate permanent injury to the spine in accordance with Insurance Law § 5102 (d) (see id., citing Lopez v Senatore, 65 NY2d 1017, 1020 [1985]; see also Gleissner v LoPresti, 135 AD2d 494, 495 [2d Dept 1987]). However, these limitations must not be minor, and courts have dismissed injury claims where the doctors have testified to limitations that appear to be based on subjective complaints (see Galatro v Randall, 240 AD2d 537 [2d Dept 1997]; Dwyer v Tracey, 105 AD2d 476 [3d Dept 1984]). The Court of Appeals has warned that a case may not survive the serious injury inquiry where additional contributory factors interrupt the chain of causation between the accident and claimed injury - such as a gap in treatment, an intervening medical problem or a pre-existing condition; however, the Court can take into consideration claimant's economic realities when considering whether an explanation of gap in treatment is sufficient (Pommels v Perez, 4 NY3d at 572; Rodriguez v Yong Wan Oh, 2 Misc 3d 134[A], 2004 NY Slip Op 50208[U] [App Term 2004]).

Based on the aforementioned legal principles, the Court finds that claimant failed to establish by a fair preponderance of the evidence that he sustained serious and significant injuries causally related to the accident (see Toure v Avis Rent-A-Car Sys., 98 NY2d at 345; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The Court found claimant's testimony somewhat more sincere than that of Dr. Kosharskyy, but neither was as credible and evidentiary supported as that of Dr. Bazos's testimony. The initial concern with their credibility arose from the issue of causation of all the serious injuries alleged by claimant and the mechanics of the accident. Although claimant described the "strong" impact to the rear of his parked car from the State's vehicle and resultant pain to his body, the photographic evidence of the damage to the vehicle, the related DMV's Police Accident Report and his testimony at trial paint a different picture (see Tr. 3/18/26 at 34). Specifically, the Accident Report described the accident as another vehicle "sideswip[ing] left side of rear bumper causing damages" with "no injuries," and claimant himself affirmed on his own DMV Report of Motor Vehicle Accident that "he didn't suffer any injury," despite his trial denials as to his signature (Exh. A, H, K, M; see Tr. 3/18/26 at 53-54, 56).

The fact remains that none of the airbags in claimant's 2015 Camry were deployed and the photos of his car after the accident reveal only a broken rear taillight and minimal scraping to the side of the vehicle; there is a dent to the State's vehicle's bumper (see Exh. N, O, P). These circumstances appear to this Court consistent with a low-impact sideswiping accident that pushed up against the bumper knocking it off its regular position, unlikely to have caused the serious and consequential injuries alleged by claimant (see Powell v Burg, 239 AD3d 679, 680 [2d Dept 2025] [photographs "relevant to show the force of the impact" and helpful to determine "the nature and extent of injuries"]). In fact, claimant testified that he did not go to any hospital close by immediately after the accident but instead took down the damaged bumper himself and drove home after the accident; it was only after almost ten hours later that night that his pain ostensibly started, prompting him to go to Montefiore Hospital (see Tr. 3/18/26 at 34, 69).

While at Montefiore, the Emergency Room Report does not reveal all the serious injuries now claimed. The Report describes that claimant was a "restrained driver in a parked car" who only complained about pain to his left shoulder and back, and whose examination revealed "no midline spinal tenderness . . . no ecchymosis or abrasions, FROM [full range of motion] of back, moving all ext[remities] with FROM" (Exh. 1 at 4). Relevantly, claimant did not complain about his neck, which reports therein: "cervical back: normal range of motion" (id. at 5). The lack of immediate neck pain is significant, as Dr. Bazos credibly testified, in terms of correlating causation of the alleged cervical disc injury to the accident (see Tr. 3/19/26 at 18). After the hospital completed those tests on claimant, he was not hospitalized but discharged the same day with over-the counter pain medication (see id. at 34; Exh. 1).

Significantly, claimant returned to work two weeks after the accident with some limitations (see Tr. 3/18/26 at 43); and this corresponds with the reports signed by Dr. El-Khoury dated January 18, 2023, February 15, 2023. March 22, 2023, May 17, 2023 and December 2, 2023, indicating that claimant "works as tolerated" or "returned to work as tolerated" (Exh. 3). In Dr. El-Khoury's September 27, 2023 report, he further notes that claimant "was cleared by Dr. Kosharskyy to return to work as tolerated" (Exh. 3); however, Dr. Kosharskyy declined to attribute that statement as his own (see Tr. 3/20/26 at 42).

When Dr. Kosharskyy examined claimant in April 2023, he found significant range of motion deficits on claimant's neck and back (see id. at 9-10, 26). In a somewhat convoluted opinion, Dr. Kosharskyy opined that those neck and lumbar spine conditions were significant and permanent as corroborated by his analysis of the MRIs and the eventual cervical percutaneous discectomy (see Exh. 3; Tr. 3/20/26 at 11-12, 18, 19, 21, 24, 27, 28). It should be noted that Dr. Kosharskyy acknowledged using a somewhat more lenient range of motion tests which heavily relied upon claimant's subjective complains of pain and discomfort (see Tr. 3/20/26 at 57, 70).

Reviewing those same findings and tests, however, Dr. Bazos credibly opined within a reasonable degree of medical certainty that claimant's cervical and lumbar spine issues were degenerative in nature and not caused by the accident (see Gash v Miller, 177 AD3d 950 [2019]; Gouvea v Lesende, 127 AD3d 811 [2015]; Fontana v Aamaar & Maani Karan Tr. Corp., 124 AD3d 579 [2015]). It is relevant to this Court that Dr. Bazos as a board-certified orthopedic surgeon possesses more experience in diagnosing hundreds of patients with spinal injuries than Dr. Kosharskyy, who is an anesthesiologist and specializes in pain management only (compare Tr. 3/19/26 at 8, 11, 17 with Tr. 3/20/26 at 6, 7). Specifically, Dr. Bazos opined that claimant merely suffered cervical and lumbar sprain/strain injuries because there was no evidence of the essential indicators of spinal trauma in the x-rays or MRIs (see Tr. 3/19/26 at 17, 22, 35, 36). "[T]he sine qua non of spinal trauma [includes] either a fracture of the spine or evidence of traumatic disc herniation," such as edema or swelling in the posterior wall of a disc (Jiang Chung v State of New York, 70 Misc 3d 775, 784 [Ct Cl 2020]). According to Dr. Bazos, claimant did not show any evidence of acute trauma, "disc injury" or inflammation, not even at the C5-C6 levels; just degenerative disc bulging (Tr. 3/19/26 at 15, 16, 17, 22, 23, 24). Even claimant's own expert, Dr. Kosharskyy recognized that the MRIs did not show any objective findings of acute traumatic injury upon claimant (see Tr. 3/20/26 at 34, 54).

Nor did the records demonstrate injuries such as a causally related disc herniation, fracture, dislocation or hematoma, as opposed to the preexisting "multilevel degenerative disc disease" (Marino v Amoah, 143 AD3d 541 [1st Dept 2016]; see Walker v Metropolitan Transp. Auth., 230 AD3d 1268 [2d Dept 2024]). Dr. Bazos explained that a person like claimant over 30 years old, would experience normal wear and tear from walking, lifting weights and moving, thereby causing his discs to lose fluid and herniate, even asymptomatically (see id. at 26, 27); this would be more apparent here given claimant's grueling schedule of over ten hours of daily driving. After carefully reviewing the MRI and accident reports admitted into evidence, this Court finds the explanation provided by the State's expert as to the age-related degenerative nature of his spinal conditions much more convincing and apparent than the one by claimant's expert (see Exh. W, X, Y, Z; see Poole v State of New York, 68 Misc 3d at 1218[A]). Indeed, Dr. Kosharskyy himself acknowledged on several occasions that there were "age appropriate" degenerative processes on claimant's spine and that he could not be certain whether the disc issue at C5-C6 preexisted the accident (Tr. 3/20/26 at 31, 53-54, 58, 67).

As for his left shoulder, claimant presented limited evidence to support a serious left shoulder injury. Claimant testified that he saw Dr. Katzman sometime in 2023, received a few injections, then stopped seeing him at all that year (see Tr. 3/18/26 at 43). Correspondingly, this Court reviewed a report from Dr. Barry M. Katzman dated February 7, 2023, diagnosing claimant with left shoulder sprain and recommending an MRI; and a report dated November 28, 2023, reflecting that Dr. Katzman gave claimant "an injection into his left biceps tendon sheath" (Exh. 3).

Finally, claimant failed to show any reasonable or supported explanation for the lengthy gap of over one year in the medical treatment for his spinal injuries post-March 2025 (see Pommells v Perez, 4 NY3d at 574; Hwang v Ilgar, 178 AD3d 784, 785 [2d Dept 2019]). The Court does not place much credibility on Dr. Kosharskyy and claimant's conclusory statements purporting that the medical treatments ran their course and were no longer effective (see Tr. 3/18/26 at 91; Tr. 3/20/26 at 29-30). Rather, this Court concludes that, although claimant undisputedly suffered certain injuries as a result of the accident, they were temporary and had resolved sometime in September 2023. As such, the assertions by claimant's expert that the shoulder, cervical and lumbar spine injuries "were causally related to the accident [are] speculative" (Perez-Torres v Cocoa Point Car Serv., 225 AD3d 554 [1st Dept 2024], citing Alverio v Martinez, 160 AD3d 454, 455 [1st Dept 2018]). As Dr. Kosharskyy declared himself upon being asked whether the disc issue "was caused by the accident or preexisted the accident?" "No one can say this for sure" (Tr. 3/20/26 at 53).

IV.

In accordance with the foregoing, after considering and evaluating the testimony of claimant and the expert witnesses, and my review of the documentary evidence, this Court finds that claimant has failed to establish by a fair preponderance of the evidence that the alleged injuries to his shoulder, cervical and lumbar spine satisfied either the permanent consequential limitation of use, 90/180-day category or significant limitation of use categories (see Islam v Makkar, 95 AD3d 1277, 1278 [2d Dept 2012]; Richards v Tyson, 64 AD3d 760, 761 [2d Dept 2009]; Staff v Yshua, 59 AD3d 614 [2d Dept 2009]). As such, the case must be dismissed.

As to any objections upon which this Court reserved decision during the course of the trial and did not address herein, and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.

Accordingly, the State's application for a directed verdict is granted, and Claim No. 138789 is hereby dismissed. Let judgment be entered accordingly.

August 17, 2026

New York, New York

JAVIER E. VARGAS

Judge of the Court of Claims

FOOTNOTES

1.   The caption has been amended sua sponte to reflect the only proper defendant, the State of New York (see Court of Claims Act § 9).

2.   A percutaneous discectomy "is a minimally invasive spine procedure that removes or shrinks herniated disc material through a small skin puncture, rather than through an open surgical incision" (https://scienceinsights.org/what-is-a-percutaneous-discectomy-and-who-needs-it/).

Javier E. Vargas, J.