Eric Cisler, Plaintiff, v. JOEL JOHNSTON JACK STRAIGHT STRAIGHT SEPTIC SERVICE SHAWN ARRUDA (2026)

The plaintiff was involved in a motor vehicle accident in April 2019 ("Clifton Park Accident"), as well as a subsequent motor vehicle accident in August 2020 ("Queensbury Accident"). After he commenced this action against the drivers and owners of the vehicles involved in these two accidents, the plaintiff was involved in a third motor vehicle accident in December 2023 ("Third Accident"), which is the subject of a separate lawsuit (see NYSCEF, Schenectady County Supreme Court, Index No. 2025-2066, Eric Cisler v David Mix et al.).

Following the completion of discovery in this action, the driver of the vehicle involved in the Queensbury Accident ("Shawn Arruda") moved for summary judgment dismissing the claims against him on the ground that the plaintiff did not sustain a serious injury (see Insurance Law § 5102; see e.g. Williams v Ithaca Dispatch, Inc., 232 AD3d 1165 [3d Dept 2024]; Lemieux v Horn, 209 AD3d 1100 [3d Dept 2022], affd 39 NY3d 1108 [2023]; Mesiti v Martin, 190 AD3d 1145 [3d Dept 2021]).¹

A "serious injury" includes, as relevant here, an injury constituting a "permanent consequential limitation of use of a body organ or member" or, alternatively, a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]). "Whether a limitation of use or function is 'significant' or 'consequential' (i.e., important) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Mesiti v Martin, 190 AD3d at 1146 [internal quotation marks and citations omitted]; see also Lemieux, 209 AD3d at 1101).

"On a motion for summary judgment dismissing a complaint that alleges a serious injury under Insurance Law § 5102 (d), the defendant bears the initial burden of establishing by competent medical evidence that the plaintiff did not sustain a serious injury caused by the accident" (Williams, 232 AD3d at 1166 [internal quotation marks and citation omitted]; see also Lemieux, 209 AD3d at 1101). If the defendant makes such a showing, the burden shifts to the plaintiff to "come forward with objective medical evidence sufficient to create a question of fact regarding the existence of a serious injury caused by the accident" (Williams, 232 AD3d at 1167-1168 [internal quotation marks and citations omitted]). Where preexisting conditions are present, this requires a plaintiff to provide "objective medical evidence distinguishing the preexisting condition from the injuries claimed to have been caused by the accident underlying the action" (id. at 1168 [internal quotation marks, brackets, and citations omitted]).

Here, in support of his motion, Mr. Arruda has submitted, among other things, the plaintiff's deposition transcript, medical records, an IME report, and an affirmation from the physician who performed the IME. In opposition, the plaintiff has submitted, among other things, deposition transcripts, medical records, an expert report from his chiropractor, and an expert report from a licensed physician certified in orthopedic surgery.

The evidentiary materials provided by the parties on the motion indicate that the plaintiff was rear-ended in August 2020 by a septic truck.² His vehicle was allegedly stopped shortly before the impact, and the impact drove him into the oncoming lane. He was out of work for one day, however, he reportedly experienced increased pain in his neck and back after the accident, which he felt worsened his condition. The plaintiff, for example, testified that he experienced significant limitations following the Queensbury Accident, including new problems with his left side (see Plaintiff's EBT, at pp. 96-101). He had trouble looking in both directions. He also had spasms in his left trapezius muscle and his left and right latissimus dorsi, and his left arm burned. He could no longer sleep on his left side, and when he woke up in the morning his left arm would be numb, and his hands would tingle. Doing anything overhead was "nearly impossible." He could not hold anything in his left hand for a period of time without dropping it. The difference in function on his left side was "disturbingly bad." He could not sleep well because he would wake up at 2:00 a.m. and 4:00 a.m. in the morning with both arms numb. When he had to make a left-hand turn while driving, he could not turn his head and had to turn his entire body to look left. He had difficulty looking behind him. He further testified that the weakness in his left hand got progressively worse to the point he felt like his left arm was going to end up being non-functional, so he "didn't have a choice" but to have surgery.

Prior to his surgery, the plaintiff underwent more conservative treatment. He sought regular chiropractic care through 2020 into 2021. His chiropractor records from August 2020 indicate that he had a diminished range of motion after the accident. His chiropractic records also show that he had severe to moderate tightness in his cervical, trapezius, and lumbar areas after the accident and that he tested positive in several categories on cervical and lumber spine special tests conducted at various times between August 2020 and September 2021.

An MRI scan from December 2020 showed predominately a C6-C7 degenerative disk with a new disc herniation at the C6-C7 level. Some degenerative disease existed in the adjacent discs including C5-C6. He continued to have pain after the accident for which he sought treatment. An MRI of his cervical spine from August 2021 noted a C6-C7 disk osteophyte complex and some degenerative changes of C5-C6. The IME notes that an MRI of the thoracic spine around that time demonstrated a T9-T10 disk desiccation and small disk herniation and T8-T9 disk desiccation. The plaintiff was offered cervical surgery after failure of conservative treatment, but he put it off for some time, and he ultimately moved forward with neck surgery in January 2023 for a left anterior approach for cervical diskectomy and fusion at C5-C6 and C6-C7. He had some improvement in his symptoms due to the surgery, including with his neck pain, vocal cord issues, and arm range of motion. However, he continued to experience pain, including back pain. In December 2023, the plaintiff was involved in another motor vehicle accident, thereby worsening his condition. He experienced a significant increase in neck pain, lower back pain, and thoracic pain. He also experienced a substantial loss of mobility and was unable to work for some time.

The IME report opines that the plaintiff had "significant pre-existing conditions, likely degenerative in nature, as evidenced by the MRIs of cervical and lumbar spine from July 2019," and that the "ultimate need for cervical surgery did relate to those same levels, suggesting that the injury of 8/26/20 simply aggravated those conditions" (NYSCEF Document No. 99, MRI Report, at pp. 6-7). The IME report further opines that the MRI of the cervical spine from August 2021 "showed very similar findings to the injury predating the 8/26/20 injury, suggesting this produced relatively minor aggravation of the cervical spine and the ultimate need for cervical surgery did relate, in fact, to the pre-existing conditions with possible aggravation." The IME report further concludes that the plaintiff did not sustain a serious injury from the Queensbury Accident, and that this accident "was not a substantial contributing factor to the need for [the plaintiff's] cervical surgery, but exacerbation of underlying degenerative changes cervical and lumbar."

In an affirmation (Document No. 99), the IME physician (apparently now Mr. Arruda's retained expert) concludes that the plaintiff did not sustain a serious injury from the Queensbury Accident. He attributes the alleged injuries to pre-existing conditions. He concludes that MRIs taken after the Clifton Park Accident "demonstrated degenerative changes that, based upon prior x-rays and pre-April 2019 complaints made by [the plaintiff] to his medical providers, appear to have largely pre-dated the accident." He concludes that the MRI results from 2021 "were very similar to the findings in cervical MRIs that predate the [Queensbury Accident]," and that "both MRIs demonstrate spinal canal stenosis and only moderate narrowing of foramina."

Based upon his review of these MRIs from 2019 and 2021, he opines that the Queensbury Accident "produced, at most, minor aggravation of degenerative conditions in [the plaintiff's] cervical spine that existed prior to the August 2020 accident," and that "the August 2020 accident was not a substantial contributing factor to the need for cervical surgery that [the plaintiff] underwent on January 10, 2023." He further opines that the plaintiff's condition improved after the surgery, and that the plaintiff's symptoms returned as a result of the third accident in December 2023. He further attributed the plaintiff's range of motion limitations during the IME examination to the December 2023 accident.

The IME physician further concludes in his affirmation that the plaintiff did not experience any "permanent loss of use of any portion of his body" as a result of the Queensbury Accident, because the plaintiff made an excellent recovery following the January 2023 surgery. He also concludes that the plaintiff did not sustain a "permanent consequential limitation of use of any portion of his body as a result of the August 2020 accident" "because there was no significant change to the objective radiological studies of [the plaintiff's] neck following the August 2020 accident and because [the plaintiff] reported the return of full range of motion as well as a good recovery following his January 2023 surgery."

The IME physician further concludes in his affirmation that the plaintiff did not sustain a significant limitation of the use of his spine or any of his extremities as a result of the Queensbury Accident, because the "MRI of [his] cervical spine did not demonstrate any significant changes to the degenerative conditions in his spine as a result of the August 2020 accident" and the plaintiff "testified that he returned to work at full duty after missing only one day of work following that accident." He also notes that the plaintiff was "not placed on any physical restrictions at any time following the August 2020 accident and prior to his January 2023 surgery."

In contrast, the plaintiff's expert physician, Dr. Hausmann, reaches several contrary conclusions from the IME physician. The plaintiff's expert report/affirmation ("Hausmann report"), opines that the injury from the Queensbury Accident was serious and that the plaintiff ultimately underwent "a major surgical intervention" in January 2023 (before the third collision) "on his cervical spine in the form [of] a two-level anterior cervical discectomy and fusion at the C5-C6 and C6-C7 levels" (NYSCEF, Document No. 126, Hausmann report, at p. 6). The report opines that this "has resulted in a significant limitation of his bodily function relative to the cervical spine, which will be permanent in nature," including "loss of range of motion and surgical scarring as well as implementation of surgical hardware, which will result in a permanent structural alteration of [the plaintiff's] cervical spine, which has led to adjacent segment disc disease in his cervical spine based on subsequent diagnostic studies done after his surgery."

The Hausmann report notes that "the vast majority of diagnostic studies of the cervical spine, as for any advanced studies like MRI scans, were done after the [Queensbury Accident]," and that this supports his opinion that "the predominance of [the plaintiff's] cervical pathology arose as a result of his 08/26/20 accident for which he had received extensive treatment" (Hausmann report, at p. 6). The report also opines that "the findings of large disc osteophyte complex at C6-7 with disc herniation [were] clearly aggravated by the second accident;" and that an MRI taken in July 2019 (after the Clifton Park Accident) showed only protrusion at the C6-C7 level, whereas an MRI of December 2020 (after the Queensbury Accident) showed a C6-C7 degenerative disc with a new disc herniation at C6-C7 level. The report concludes that this was an "objective measure of change in which the C6-C7 disc advanced from protruding or pushing out against its outer wall before the 8/26/20 accident to the outer wall of the disc rupturing after the 8/26/20 accident."

The Hausmann report also opines that the plaintiff suffered a lumbar sprain from the Queensbury Accident, which resulted in "aggravation of underlying degenerative spondylosis in the lumber spine, which had produced symptoms requiring treatment, but fortunately no surgery" (Hausmann report, at p. 6). The report opines that the "aggravation would also be termed a serious injury" by virtue of the fact that the plaintiff required extensive chiropractic care and follow up for the lumber spine, and that the chiropractic records indicate that the plaintiff's lumbar range of motion was "significantly reduced" following the Queensbury Accident. The report also finds that an MRI of the thoracic spine showed disc herniation at T8-T9 and T9-T10 levels, which by virtue of the plaintiff "not having any symptoms in this area prior to the second accident, . . . was caused by the second accident due to the impact forces of that accident," and that the disc herniations represent "serious injuries to the thoracic portion of [the plaintiff's] spine."

Out of all three of the accidents, the Hausmann report allocates a 60% apportionment to the Queensbury Accident based on "the complexity of the treatment [the plaintiff] received, the nature of the treatments he received, and the extensive amount of treatment he received after the second accident with a significant surgical procedure having been performed after that accident" (Hausmann report, at p. 7). Following this apportionment, the report further discusses the medical evidence, the plaintiff's injuries, and the causal relationship between the Queensbury Accident and the injuries. Specifically, the report provides, as follows:

"As noted above, the reasons for my opinion include a difference in the MRI of the cervical spine from before until after the 08/26/20 accident, which would support the fact that this man had aggravation of his cervical spine with development of new pathology due to the subject accident. This would certainly be consistent with a permanent serious injury. Prior to the 08/26/20 accident, he did not need treatment for approximately eight months. However, after that accident he began weekly chiropractic care for over a year and in November 2020, began consulting with a spine surgeon at Saratoga Spine who eventually performed the above-mentioned surgery prior to the third accident.

While Dr. Kirkpatrick's narrative report and Dr. DiChristina's affirmation assert that this man's cervical problem especially, as well as the other injuries, were due to preexisting pathology, it is my opinion within a reasonable degree of medical certainty that the conditions that they discussed in the reports were aggravated, accelerated and made worse by the subject accidents discussed above, with once again the most important accident occurring on 08/26/20, with development of new pathology in the cervical spine.

. . .

Once again, as noted, the difference in the cervical spine pathology that is documented, in my opinion, was a result of the 08/26/20 accident. That accident was a significant contributing factor resulting in this man's surgery performed by Dr. Herzog. The reason for this is that there was no documentation of any need for surgery prior to that accident and the additional and new pathology was a causative factor for the symptoms which caused a crescendo of his difficulties ultimately culminating in that surgical intervention" (Hausmann report, at 7-8).

As for the parties' legal arguments, Mr. Arruda contends that his moving papers satisfy his initial burden on his motion, and that the plaintiff's opposition papers have failed to create a triable issue of fact. In contrast, the plaintiff contends that Mr. Arruda has failed to satisfy his initial burden on the motion and that, even if Mr. Arruda met his initial burden, a triable issue of fact exists on whether the injuries from the Queensbury Accident constitute a serious injury under the "permanent consequential limitation" and "significant limitation" categories (see Insurance Law § 5102 [d]).

Regarding Mr. Arruda's initial burden, the Court disagrees with the plaintiff's position that the expert opinions relied on by Mr. Arruda lack any evidentiary value simply because those opinions relied on uncertified copies of the medical and chiropractic records (see Fillette v Lundberg, 150 AD3d 1574, 1577 [3d Dept 2017]; Martin v LaValley, 144 AD3d 1474, 1475 [3d Dept 2016]; Womack v Wilhelm, 96 AD3d 1308, 1309 [3d Dept 2012]). The Court nevertheless questions whether Mr. Arruda's expert opinions were detailed enough to adequately address the complexity of the issues involved in this case for the second accident, as it relates to the "permanent consequential limitation" and "significant limitation" categories of serious injury. Notwithstanding, even assuming for the sake of argument that Mr. Arruda's proof satisfied his initial burden as to these two categories of serious injury, the Court finds that triable issues of fact persist based on the competing expert proof and the issues raised by the plaintiff's expert physician. As such, the Court finds that the plaintiff has presented sufficient objective medical evidence to create a triable issue of fact and that these issues should be submitted to a jury for its consideration.

It is therefore,

ORDERED, that the motion seeking summary judgment of Shawn Arruda (Motion No. 3) is DENIED as to the claims of serious injury based on a "permanent consequential limitation" and "significant limitation" categories set forth in Insurance Law § 5102; and it is further

ORDERED, that the remaining categories of serious injury set forth in the bill of particulars are otherwise DISMISSED, unless the plaintiff notifies the Court within the next 30 days as to what additional categories he intends to present to a jury for consideration and what evidence supports each additional category of serious injury; and it is further

ORDERED, that the parties remaining in this action (i.e., Mr. Cisler and Mr. Arruda) are directed to appear at the Saratoga County Courthouse for an in-person settlement conference on July 29, 2026 at 3:00 p.m.

This shall constitute the Decision & Order of the Court. No costs are awarded to any party. The Court is hereby uploading the original into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.

So-Ordered.

Dated: June 5, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

Enter.

FOOTNOTES

1.   Two other defendants in this action, Michelle and Joel Johnston, have also moved for summary judgment. As that motion concerns the Clifton Park Accident from April 2019, the Court has addressed the merits of that motion in a separate written decision to avoid confusion.

2.   In conducting its review of the evidence on this motion, the Court has considered the facts in the light most favorable to the plaintiff (i.e., the non-moving party on this motion), as required on a summary judgment motion.

Richard A. Kupferman, J.