The opinion of the court was delivered by: Kahn, District Judge.
MEMORANDUM — DECISION AND ORDER
Presently before the court is Defendants' motion for summary
judgment. For the reasons stated herein, Defendants' motion is
The present case arose as the result of an automobile accident
that occurred on July 17, 1998. On that date, Plaintiffs Shelley
Skaler Meyer ("Mrs.Meyer") and Robert Meyer were traveling
northbound on the New York State Thruway to visit their daughter
in Westport, New York. At approximately 3:30 p.m. that
truck operated by Defendant William Blowers and owned by
Defendant AFGD, Inc., a/k/a American Flat Glass Distributors,
Inc., entered Plaintiffs' lane of travel, causing a collision
and forcing plaintiffs vehicle to spin around entirely several
times before coming to rest against the center median guardrail.
The accident caused extensive damage to Plaintiffs' car,
rendering it inoperative. Mrs. Meyer was operating the vehicle
at the time of the accident.
Following the accident, Mrs. Meyer alleges that she felt
soreness in her back, neck, shoulder, knees, neck, and feet,
symptoms which persisted throughout Plaintiffs' weekend with
their daughter. Shortly after returning to their home in
Pennsylvania, Mrs. Meyer scheduled an appointment with an
orthopedic surgeon. Since that appointment, Mrs. Meyer has
engaged in over two years of continuing medical treatment
allegedly including an MRI of her spine, two series of three
epidural/steroid injections to relieve pain, an EMG nerve
conduction test, a myleogram, a CAT scan, X-rays, two regimens
of physical therapy, over fifteen office visits with three
doctors, numerous medications for pain relief, and an MRI of her
shoulder. She continues to complain of extreme discomfort,
limited range of motion, and pain which allegedly limits
substantially her ability to perform her everyday activities.
Plaintiffs filed the present diversity action seeking damages
for personal injuries and loss of consortium on July 23, 1999.
Following discovery and an independent medical examination of
Plaintiff, Defendants now move for summary judgment on the
ground that Plaintiffs cannot prove that Mrs. Meyer sustained a
serious injury as defined by § 5102(d) of the New York State
A. Standard for Summary Judgment
Summary judgment is appropriate if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); D'Amico v. City
of New York, 132 F.3d 145, 149 (2d Cir. 1998). A fact in
dispute is only material if it would affect the outcome of the
suit. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A
material fact is genuinely disputed only if, based on that fact,
a reasonable jury could find in favor of the non-moving party.
See id. On a motion for summary judgment, all evidence must be
viewed and all inferences must be 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, 477 U.S. at
323, 106 S.Ct. 2548. Upon the movant's satisfaction of that
burden, the onus then shifts to the non-moving party to "set
forth specific facts showing that there is a genuine issue for
trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. In doing
so, the nonmoving party may not "rely on conclusory allegations
or unsubstantiated speculation." Scotto v. Almenas,
143 F.3d 105, 114 (2d Cir. 1998). The non-moving party may not "simply
show that there is some metaphysical doubt as to the material
facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), "but
must set forth specific facts showing that there is a genuine
issue of fact for trial," First Nat'l Bank of Az. v. Cities
Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569
(1968); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986).
B. New York State Insurance Law*fn1
New York's "no-fault" insurance law was created to remedy "the
inability of the tort system to rapidly, adequately and fairly
compensate victims of automobile accidents" by, among other
things, "removing minor claims from the courts." Goodkin v.
United States, 773 F.2d 19, 21 (1985) (citing Montgomery v.
Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444, 448-50
(1975)). As a result, plaintiffs are required to satisfy a
"serious injury" threshold before any non-economic recovery may
be had. See N.Y. Ins. Law § 5102(d) (McKinney 2000); see
Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570,
441 N.E.2d 1088, 1091-92 (1982); Goodkin, 773 F.2d at 22.
New York State Insurance Law § 5102(d) defines "serious
injury" as follows:
Serious injury means a personal injury which results
in death; dismemberment; significant disfigurement; a
fracture; loss of a fetus; 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; or a medically determined injury
or impairment of a non-permanent nature which
prevents the injured person from performing
substantially all of the material acts which
constitute such person's usual and customary daily