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April 18, 2001


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


This action arises from a collision that occurred on January 24, 1999 on an exit ramp of the Van Wyck Expressway while plaintiff Flora Williams rode in a car belonging to Noel Ritchie and driven by her daughter, Delores Williams. Defendant Dhasrat Mangra now seeks summary judgment against plaintiff on the ground that plaintiff has not sustained a "serious injury" as required by Article 51, § 5102(d) of the New York State Insurance Law. Also before the court is a motion for summary judgment by defendants Noel Ritchie and Delores Williams as against plaintiff on the ground that she has not sustained a "serious injury" and as against co-defendant Dhasrat Mangra on the issue of liability.*fn1 For the following reasons, defendant Mangra's motion for summary judgment should be granted, and plaintiffs action should be dismissed for failure to establish a "serious injury" under New York Insurance Law.


On January 24, 1999, plaintiff Flora Williams, a resident of South Carolina, was a passenger in a vehicle driven by defendant Delores Williams and owned by defendant Noel Ritchie, both New York residents. Also traveling as passengers in the vehicle were Delores Williams' son and daughter and a co-worker's daughter. (Delores Williams Dep. 20) While driving southbound on the Van Wyck Expressway in Queens, the Williams' car was hit by another car driven by its owner, defendant Dhasrat Mangra, also a New York resident. Plaintiff filed the Complaint in this action on January 6, 2000, although it was signed on October 8, 1999. In it, she alleges that she "was severely injured, bruised and wounded, suffered, still suffers and will continue to suffer for some time physical pain and bodily injury and became sick, sore, lame and disabled and so remained for a considerable length of time." (Comp. ¶ 10) These injuries, she alleges, constitute "serious injuries" as defined under New York law. (Id. at ¶ 11) In her Response to Interrogatories, plaintiff elaborates that her injuries include: disc herniation in the cervical and lumbar spine, radiculitis, traumatic arthritis, a cerebral concussion, myositis and possible osteoarthritis and osteoporosis, anxiety, sleep disorders, loss of strength, tension, post traumatic stress disorder and emotional distress. (Abneri Decl. Ex. C, Pl.'s Response to Interrog. No. 4(a)) Plaintiff further alleges that "she has not fully recovered from her injuries and upon information and belief, will not fully recover from her injuries." (Id. at 4(c))


New York substantive law governs this diversity action pursuant to well-settled principles governing the choice of law in diversity actions. Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999). New York's no-fault statute for automobile accidents bars recovery for any action by or on behalf of a "covered person" against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state for economic loss. A right of recovery for non-economic loss does exist, however, "in the case of serious injury." Morrone v. McJunkin, No. 98 CV 2163, 1998 WL 872419, at *1, 1998 U.S. Dist. Lexis 19506, at *4 (S.D.N.Y. 1998); N.Y.Ins.Law § 5104(a) (McKinney 1998). Nine categories of injuries may constitute a "serious injury" under the statute:

"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 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 activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

N.Y.Ins.Law § 5102(d) (McKinney 1998). To demonstrate that her injuries are "serious injuries" entitling her to recovery under the no-fault statute, plaintiff must demonstrate that her injuries fall into one of the nine statutory categories.

Summary judgment against a plaintiff who seeks recovery under New York Insurance Law is appropriate when the evidence would not warrant a jury finding that the injury falls within one of the nine statutory categories. Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 573-74, 441 N.E.2d 1088 (1982). Thus, once a defendant establishes a prima facie case that plaintiffs injuries are not serious, the burden shifts to plaintiff to demonstrate that she has endured a serious injury. Morrone, 1998 WL 872419 at *2, 1998 U.S. Dist. Lexis 19506 at 5-6 (citing Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 991, 591 N.E.2d 1176 (1992)). A plaintiff may defeat summary judgment through admissible evidence in the form of sworn affidavits by physicians. Morrone, 1998 WL 872419 at *2, 1998 U.S. Dist. Lexis 19506 at *5-6 (citing Bonsu v. Metropolitan Suburban Bus Authority, 202 A.D.2d 538, 610 N.Y.S.2d 813, 813-14 (2d Dep't 1994); McLoyrd v. Pennypacker, 178 A.D.2d 227, 577 N.Y.S.2d 272, 273 (1st Dep't 1991), appeal denied, 79 N.Y.2d 754, 581 N.Y.S.2d 665, 590 N.E.2d 250 (1992)). Defendants' summary judgment motion may be premised on unsworn reports by plaintiffs physicians, but defendants must provide evidence from their own physicians in the form of sworn affidavits. See, e.g., McGovern v. Walls, 201 A.D.2d 628, 607 N.Y.S.2d 964 (2d Dep't 1994); Looney v. Epervary, 194 A.D.2d 591, 599 N.Y.S.2d 989, 989-90 (2d Dep't 1993).

Defendants have certainly met their burden of proving a prima facie case that plaintiffs injuries are not serious. Defendants Delores Williams and Ritchie have submitted sworn reports, which may fairly be characterized as sworn affidavits, by Joseph L. Paul, M.D., an orthopedic surgeon, and Robert S. April, M.D., a neurologist, both of whom conclude, based upon their examinations of plaintiff, that she has no disability or injury as a result of the car accident. (Abneri Decl., Ex. G, Paul Rep.; Ex. H, April Rep.) In his motion for summary judgment, defendant Mangra "repeats, reiterates and relies" upon those arguments set forth in the submissions of Delores Williams and Ritchie, and to that extent, the reports of Drs. Paul and April also satisfy Mangra's initial burden on a motion for summary judgment.

Dr. Paul examined plaintiff on August 21, 2000, during which time he performed an orthopedic examination consisting of a general physical examination and an examination of plaintiffs lumbar spine, right shoulder and right hip. Dr. Paul noted that plaintiff complained of "headaches," "intermittent pain in her right shoulder and continued pain in her lower back and right hip, all of which are now almost one year and seven months post accident." (Abneri Decl., Ex. G, Paul Rep., 2) Relying on his examination and the medical records and history provided by plaintiff, Dr. Paul offered the following conclusions:

[I]t is my opinion, with a reasonable degree of medical certainty, that Ms. Flora Williams has recovered from the injuries to her lumbar spine, right shoulder and right hip. Ms. Williams' examination today was completely normal, and despite her subjective complaints, there were no objective findings found during my examination.
Today's examination was completely normal, and certainly, a permanent injury has not been sustained.
Based upon my examination at this time, review of the MRI of the cervical and lumbar spine, x-rays of the chest, right shoulder and right hip, spinal ultrasound and the history as related by the claimant, there is no causally related disability or residuals as a result of the injuries to ...

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