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WALSH v. DURKIN BROS.

October 16, 1997

JAMES WALSH and ANNA WALSH, Plaintiffs, against DURKIN BROTHERS, INC. and THOMAS DURKIN, Defendants.

William C. Conner, Senior United States District Judge.


The opinion of the court was delivered by: CONNER

CONNER, Senior D. J.:

 Plaintiffs James and Anna Walsh bring this action seeking damages sounding in common law tort against defendants Durkin Brothers, Inc. ("Durkin Bros.") and Thomas Durkin ("Durkin"). This Court has jurisdiction pursuant to 28 U.S.C. § 1332. Defendants move for summary judgment under FED. R. CIV. P. 56 on the ground that New York's "no-fault" automobile insurance law bars plaintiffs' claims. For the reasons stated below, the motion is denied.

 BACKGROUND

 Unless otherwise noted, the following facts are undisputed. On May 25, 1994, Mr. Walsh was struck with the rear door of a van, while loading the vehicle in the course of his employment. Prior to loading the van, Walsh had carried a crate of parts to the van and then opened the right rear door, to load the van. Walsh unlatched and released the left rear door. After releasing the door, Walsh reached inside the van, still holding the crate. Durkin then pushed the right door, and it shut on Mr. Walsh's arm. *fn1" As a result of this incident, Mr. Walsh sustained injuries to his right arm and wrist, the extent of which is disputed by the parties. Plaintiffs then filed this action on January 5, 1996, Mr. Walsh claiming "serious and permanent personal injuries," and his wife claiming loss of consortium, based on the negligence and "other culpable conduct" of defendants.

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment is appropriate "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact." Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990). A fact is material if, on the basis of that fact, "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed, and all inferences drawn, in the light most favorable to the non-moving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988). The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 II. New York's No-Fault Insurance Law

 Defendants assert that the "Comprehensive Automobile Insurance Reparations Act," commonly known as New York's "no-fault" insurance law, N.Y. INSURANCE LAW, § 5101 et seq. (McKinney's 1985 & Supp. 1997), bars plaintiffs' case and that therefore, summary judgment should be granted. According to New York's no-fault insurance law,

 N.Y. INSURANCE LAW § 5104(a)(emphasis added).

 As the Court understands defendants' argument, New York's no-fault insurance law bars plaintiffs' claims because the criteria triggering the statute have been met, namely, plaintiffs have alleged negligence, "arising out of . . . the use or operation" of a motor vehicle. Furthermore, defendants contend, plaintiffs, as a matter of law, have failed to plead "serious injury," as required to sustain an action for non-economic loss.

 We need not address this argument, however, because defendants have failed to demonstrate that the no-fault insurance law applies to this case. Section 5104(a) clearly applies only to actions between "covered person[s]," see Cole v. United States, 1986 U.S. Dist. LEXIS 25394, No. 85 Civ. 5295, 1986 WL 5805, at *4 (S.D.N.Y. May 16, 1986), yet defendants have failed to ...


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