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March 30, 2001


The opinion of the court was delivered by: Kahn, District Judge.


Presently before the court is Defendants' motion for summary judgment. For the reasons stated herein, Defendants' motion is denied.


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 afternoon, a 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 Insurance Law.


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 ...

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