United States District Court, S.D. New York
March 22, 2004.
EDWARD KLEIN, Plaintiff
BARBARA GOLDFARB and CHRYSLER FINANCIAL COR, s/h/a CHRYSLER FINANCIAL CO., Defendants
The opinion of the court was delivered by: DENISE COTE, District Judge
The defendants have moved for summary judgment in this personal
injury action arising out of a collision between a pedestrian and the
operator of a motor vehicle. They argue that there is insufficient
evidence to give rise to a genuine issue of fact as to whether the
plaintiff has suffered a "serious injury" under New York Insurance Law
§ 5102(d) ("Section 5102(d)"). The defendants' motion is denied.
Taking the evidence in the light most favorable to the plaintiff, the
plaintiff has presented sufficient evidence to show that there is a
genuine issue of material fact as to whether the injuries to his teeth
constitute a "fracture" so as to be a "serious injury" under Section
5102(d). The present case is distinguishable from Epstein v. Butera,
547 N.Y.S.2d 374, 375 (2d Dep't 1989). Unlike the chipped tooth at issue
in Epstein, the plaintiff here has sustained extensive damage to his
teeth. See Kennedy v. Anthony, 600 N.Y.S.2d 980, 981 (3d Dep't 1993)
(damage to teeth requiring ongoing treatment may be a considered a
"fracture" for purposes of New York's no-fault insurance law).
The issue of whether a pre-existing condition was responsible for
the plaintiff's injuries must be decided at trial.
The plaintiff has also presented sufficient evidence to show that there
is a genuine issue of material fact as to whether the injuries sustained
by the plaintiff to his cervical spine, shoulders, and hip constitute a
"serious injury" under Section 5102(d). The contradicting medical
affirmations submitted by the parties in connection with this motion
merely establish a "battle of the experts." Although the affirmation of
Dr. Robert Zaretsky in support of the plaintiff's case is barely
adequate, the challenges the defendants chose to bring against Dr.
Zaretsky's affirmation must be rejected.
Accordingly, it is hereby
ORDERED that the motion for summary judgment is denied.
IT IS FURTHER ORDERED that the Joint Pretrial Order is due on April 23,
IT IS FURTHER ORDERED that the parties must contact Magistrate Judge
James C. Francis no later than March 26, 2004, to arrange for settlement
discussions under his supervision.
IT IS FURTHER ORDERED that the case is placed on the May 3, 2004 trial
ready calendar. You must be ready to proceed on 24 hours notice. You may
contact the Deputy Clerk, Gloria Sanchez, to learn where your case stands
on the calendar.
IT IS FURTHER ORDERED that the following procedures shall govern the
conduct of the trial.
1. All exhibits must be pre-marked.
2. At the start of the trial each party will present the Court with the
(a) Three copies of a complete exhibit list.
(b) A set of pre-marked exhibits assembled
sequentially i) in a looseleaf binder, or ii) in
separate manila folders labeled with the exhibit
numbers and placed in a suitable container or box
for ready reference.
(c) The exhibits should include copies of the
sections of any depositions that are intended
to be offered into evidence, expert reports,
and any charts or summaries of evidence.
3. Counsel should be available every day at 9:00 a.m. (except for the
first day of trial) in order to discuss with the Court any legal or
evidentiary issues expected to arise during the day.
4. Testimony will generally be taken between 9:30 and 5:00 from Monday
through Thursday. There will be a mid-morning, a mid-afternoon and a
lunch break from 12:45 p.m. to 2 p.m.
5. There should be no sidebars during jury trials. Counsel are expected
to anticipate any problems that might require a ruling from the Court and
to raise those issues with the Court in advance of the time that the jury
will be hearing the evidence.
6. Unless counsel request otherwise prior to trial, depositions offered
in lieu of live testimony will not be read to the jury. Counsel should
make sufficient copies of those
depositions or sections of depositions so that each juror has a complete
set. If the volume of such transcripts warrants it, the transcripts
should be placed in a binder. The jury will be given time to read the
depositions at home, or if appropriate, in the courthouse.
7. If counsel intend to distribute copies of documentary exhibits to
the jury, make a separate copy for each juror.
8. Counsel should make certain that they have custody of all original
exhibits. The Court does not retain them and the Clerk is not responsible
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