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ZABEL v. OLSEN

August 12, 1995

MARILYN ZABEL and RONALD ZABEL, Plaintiffs, against TROY HOWARD OLSEN and AUTOMOBILE TRANSPORT SPECIALIST, INC., Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 Presently before the Court is defendants' motion for summary judgment made pursuant to Fed. R. Civ. P. 56. For the reasons to follow, the motion is denied.

 I. BACKGROUND

 This action arises from an August 1, 1991 motor vehicle accident on the New York State Thruway. Defendant Troy Howard Olsen was the driver of a tractor trailer owned by defendant Automobile Transport Specialist, Inc., which collided with the plaintiffs' car. Plaintiffs claim that the tractor trailer side swiped their car forcing their car to hit the center median. This all occurred while plaintiffs were on vacation.

 These facts are not in dispute: Plaintiff Marilyn Zabel did not seek medical attention until mid-August, at least two weeks after the accident. It was at this time that she concluded her vacation and arrived back in her native State of Virginia. At this time, she saw Dr. Perry complaining of neck, lower back and knee pain. She was treated by the doctor, and she did not seek further medical attention until December, 1991. At that time, she sought treatment from Dr. Thomas J. Klein of the Orthopedic & Sports Injury Specialists group in Reston, Virginia. At no time was plaintiff hospitalized for her alleged injuries from the accident.

 Now, defendants are bringing a motion for summary judgment claiming that the injuries suffered by the plaintiffs do not meet the threshold "serious injury" requirement under New York's no-fault insurance laws.

 II. DISCUSSION

 Rule 56(c) provides that the court may grant summary judgment where there are no genuine issues of material fact for trial. Fed. R. Civ. P. 56(c). If there are no genuine issues, the movant is entitled to judgment as a matter of law. When the movant meets this standard, the opposing party must present sufficient facts to demonstrate that there exists some genuine issues of material fact in order to defeat the movant's motion for summary judgment. An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the evidence in light most favorable to the party opposing the motion. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987).

 When the opposing party bears the ultimate burden of proof on a particular issue, such party may defeat a properly supported summary judgment motion by producing specific facts which demonstrate a genuine issue of material fact on that issue. See Montana v. First Federal Savings and Loan Assoc. of Rochester, 869 F.2d 100, 103 (2d Cir. 1989); see also Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Here, plaintiff bears the ultimate burden of proof.

 The sole issue before the Court is the issue of whether plaintiff had suffered a "serious injury" under New York's No-Fault laws. Plaintiff claims that she indeed suffered serious injuries to her neck, lower back and knee. She claims that all her injuries directly flowed from the August 1 accident. Defendants, as expected, claim otherwise. They argue that there is no causal connection between her condition and the accident in question. Moreover, they argue that plaintiff's injuries does not rise to the level of "serious injury" as contemplated by New York's insurance laws.

 Under New York's no-fault insurance law, an insured party can only recover against another insured party for economic loss in excess of $ 50,000--greater than "basic economic loss"-- or for non-economic loss in the case of a "serious injury." New York Insurance Law § 5104. "Serious injury" is defined as

 New York Insurance Law § 5102(d). New York courts have strictly construed the serious injury requirement, noting the legislature's determination to "'significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium.'" Licari v. Elliott, 57 N.Y.2d 230, 236, 441 N.E.2d 1088, 1091, 455 N.Y.S.2d 570, 573 (1982) (quoting Memorandum of State Executive Dep't, 1977 McKinney's Session Laws of N.Y. at 2448).

 "It is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute." Id. at 237. By enacting the no-fault law, the legislature modified the common law rights of persons injured in automobile accidents, Montgomery v. Daniels, 38 N.Y.2d 41, 340 N.E.2d 444, 378 N.Y.S.2d 1 (1975), to the extent that plaintiffs in automobile accident cases no longer have an unfettered right to sue for injuries sustained. Thus, to the extent that the legislature has abrogated a cause of action, the issue is one for the Court, in the first instance where ...


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