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March 20, 2004.

MICHAEL EBEWO, Plaintiff, -against- JESUS MARTINEZ, Defendant

The opinion of the court was delivered by: JOHN KOELTL, District Judge


This diversity action arises out of an alleged accident in which a car owned and operated by the defendant, Jesus Martinez, struck the plaintiff, Michael Ebewo, as he was crossing the street in the Bronx, New York. The plaintiff filed this suit against the defendant alleging state law claims based on negligence.

The defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that the plaintiff's claims are barred by statute because he has not suffered a "serious injury" as defined by New York's no-fault automobile insurance law. See N.Y. Ins. L. §§ 5104(a) and 5102(d).


  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and Page 2 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 also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) Page 3 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).


  The following facts are undisputed except where otherwise noted. The alleged accident occurred on November 23, 1999 at the intersection of University Avenue and Tremont Avenue in the Bronx, New York, at about 12:30 p.m. (Def.'s Rule 56.1 St. ¶ 1; Pl.'s Resp. Rule 56.1 St. ¶ 1.) Each party has a different view of the circumstances of the alleged accident.

  The defendant claims that he was stopped at a red light, and that when the light turned green, he remained stationary to Page 4 allow pedestrians to cross in front of him before he made a left turn. (Def.'s Rule 56.1 St. ¶ 3.) The defendant claims that he was then hit from the rear by a Ford pick-up truck and that the impact caused his car to move forward about one foot. (Id. ¶¶ 3-4.) The defendant claims that he then exited his car to inspect for damage, and that upon returning from the rear of the car he encountered the plaintiff, who was then standing and writing on a piece of paper. (Id. If 5-6.) The defendant claims that a crowd formed and threatened him, which caused him to leave. (Id. ¶ 6.) The defendant maintains that his car did not hit the plaintiff or any other pedestrian. (Id. ¶ 7.)

  The plaintiff claims that as he was crossing the street in front of the defendant's car, the defendant ran a red light, knocked the plaintiff to the ground, and dragged the plaintiff a few feet. (Pl.'s Resp. Rule 56.1 St. ¶ 1.) The plaintiff disputes the defendant's claim that a Ford pick-up truck was involved in the accident. The plaintiff claims that after he was hit, the defendant got out of his car momentarily but then returned and drove off. (Id. ¶ 3.) The plaintiff concedes that a crowd had formed and threatened to attack the defendant. (Id. ¶ 6.)

  The plaintiff was given an MRI examination on December 9, 1999, and that examination revealed evidence of disc herniation in the plaintiff's spine. (Affidavit of Steven Brownstein, M.D. Page 5 dated July 2, 2003, attached as Ex. 6 to Affidavit of Vincent I. Eke-Nweke dated July 7, 2003 ("Eke-Nweke Aff.").)

  One of the plaintiff's treating physicians, Dr. Enrique Hernandez, concluded in December 2000 that the plaintiff was experiencing thirty-degree decreased range of motion of the cervical and lumbar spine, and that the plaintiff had suffered injuries that included a closed head injury with post-traumatic headaches, a contusion sprain to the cervical and lumbar spine regions, and a contusion injury to the left knee. (Report of E. Hernandez, M.D., dated Dec. 20, 2000 attached as Ex. L to Affidavit of Joel Scott Ray dated June 18, 2003 ("Ray Aff."), at 1-2.)

  As a result of the injuries he allegedly sustained on November 23, 1999, the plaintiff missed approximately one month of work as a teacher. (See Transcript of Deposition of Michael Ebewo dated Oct. 11, 2002 ("Ebewo Dep.") attached as Ex. F to Ray Aff., at 10, 82.) The plaintiff claims that he continues to experience pain and stiffness in his neck and back as well as various physical limitations that prevent him from engaging in certain everyday tasks and activities. (Affidavit of Michael Ebewo dated July 2, 2003 ("Ebewo Aff.") attached as Ex. 9 to Eke-Nweke Aff., at ¶¶ 7-8.) In addition to these injuries, the plaintiff alleges "that he has also suffered from irritability and a decreased sexual drive. (Ebewo Dep. at 92-94.) Page 6

  On April 21, 2003, the plaintiff was examined by two experts retained by the defendant. Dr. Robert Israel conducted an orthopedic examination, and he concluded that the plaintiff had made a complete recovery from any injuries he might have sustained as a result of the alleged accident, and that the plaintiff had not sustained a permanent injury that would require further testing, treatment, or therapy. (Affidavit of Dr. Robert Israel, M.D., dated June 17, 2003 attached as Ex. I to Ray Aff., ¶ 6.) Dr. Andrew Ivanson conducted a neurological examination, and he concluded that the plaintiff had recovered from any injuries he might have sustained in the alleged accident and that there were no objective neurological findings to substantiate the plaintiff's subjective complaints. (Affidavit of Dr. ...

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