The opinion of the court was delivered by: DAVID TRAGER, District Judge
Plaintiffs Louis R. Scotto ("Scotto") and Francesca A. Scotto
(together "plaintiffs") brought this action pursuant to the
Insurance Law of the State of New York (the New York No-Fault
law). Louis Scotto contends that the various injuries that he
suffered in a car accident with Michael Moraldo and Donna M.
Moraldo ("defendants") are "serious" as defined by N.Y. Ins. Law.
§ 5102(d) (Consol. 2004) ("§ 5102(d)"). Louis Scotto argues
that as a result of his "serious injury" he was damaged in the
sum of $1,000,000. (Moraldo Affirmation, Ex. A at 14). Francesca
Scotto argues that as result of Louis Scotto's serious injury,
she was deprived of the services, society and companionship of
her spouse. She seeks damages in the sum of $150,000. Id. at
16. In their motion for summary judgment pursuant to Fed.R. Civ.
P. 56(c), defendants contend that Louis Scotto's alleged injuries
do not qualify as "serious" as defined by § 5102(d).
On January 3, 2000, plaintiffs were involved in an automobile
accident with defendants. (Moraldo Affirmation, Ex. A ¶ 9). Louis
Scotto testified that he was stopped at the light between Midland
Avenue and Father Capodanno Boulevard in Staten Island, N.Y.
(Moraldo Affirmation, Ex. F at 25).*fn1 There were two or
three cars in front of him. He was at a complete stop for a
couple of seconds, but then defendants' vehicle hit Scotto's
vehicle from behind. Id. at 32. The rear impact moved Scotto's
car straight ahead into the car in front of him. As a result,
there were two impacts in the crash. At the time, Scotto was
wearing a seatbelt; however, the airbags did not deploy. Id. at
36. As a result of both impacts, Scotto hit the seatbelt and the
seat with his neck, back, and chest. Id. at 37. Scotto was able
to get out of the car by himself, but suffered from pain in his
neck, back, both shoulders, and in his left leg. Id. at 38-9.
About an hour after the accident, id. at 44, Scotto went to
Staten Island Hospital and was seen by Dr. Gary Kaplan (Scotto
Affirmation, Ex. A (Report of Dr. Kaplan, 1/3/00)). Scotto
complained of head and shoulder pain. However, he did not
complain of any back pain. Neurovascular status was found to be
grossly intact at the time. No focal motor weakness was
identified. Id. at 1. Scotto was x-rayed and was diagnosed with
whiplash. He was given Advil and told to follow up with his
medical doctor. (Moraldo Affirmation, Ex. F at 51).
Scotto was then treated by Dr. Caraccino.*fn2 (Scotto
Affirmation, Ex. A (Report of Dr. Carracino, 1/4/00); Moraldo
Affirmation, Ex. F at 53). Scotto complained to the doctor about
pain in his neck, shoulders and upper back. (Moraldo Affirmation,
Ex. F at 54). Dr. Caraccino diagnosed whiplash injury. (Scotto
Affirmation, Ex. A (Report of Dr. Carraacino, 1/4/00)).
Additionally, a day or two after the accident Scotto began to
suffer from headaches and eye pain. (Moraldo Affirmation, Ex. F
at 54). Dr. Caraccino only gave Scotto an anti-inflammatory and
did not take any x-rays nor advise Scotto to undergo surgery.
At the time of his deposition (October 24, 2002), Scotto took
Advil two or three times a week because of his pain. Id. at 71.
At that time, Scotto claimed that since the accident, he had
experienced daily pain and limitation of movement in his neck and
upper back, which prevented him from performing his usual and
ordinary activities. These activities included bending, lifting,
twisting, coughing or sneezing. (Scotto Aff. ¶ 4). He was limited
in his ability to stand for more than 20 minutes, to sit for more
than 45-60 minutes, and to walk more than a few blocks. Id. ¶
5. Furthermore, Scotto was unable to drive for more than one hour
at a time. Id. ¶ 8. Scotto also experienced headaches, id. ¶
7, and was unable to play sports or run for more than 20 minutes
at a time, id. ¶ 6. Scotto also did not do any housework and
did not have sexual intercourse*fn3 for at least three
months after the accident. (Moraldo Affirmation, Ex. F at 79,
Since 1978, Scotto has worked for South Beach Psychiatric
Center. He is a social worker and the director of the day
hospital. Id. at 9-10. Scotto supervises the staff (between
10-15 people) responsible for therapy and for running groups for
the clients. During his job, he is mostly seated. However, as a
result of the car accident, Scotto missed a week of work and
would later miss between 10 to 15 days for medical treatment.
Id. at 12, 14. When Scotto returned to work, he was only
limited in that he could not turn his neck to talk to people.
Id. at 13.
In order to recover for non-economic loss in a motor vehicle
accident under New York
Law, the injury must be defined as "serious." N.Y. Ins. Law. §
5104 (Consol. 2004). "Serious injury" is defined as a personal
injury that results in:
death; dismemberment; significant disfigurement; a
fracture; loss of 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
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) (Consol. 2004). Scotto contends that his
bodily injuries are "serious" under the last four categories of §
5102(d) (Scotto Affirmation ¶ 1).
The legislative intent of New York's No-Fault law was to
"significantly reduce the number of automobile personal injury
cases litigated in the courts," Licari v. Elliot, 57 N.Y.2d 230,
236, 455 N.Y.S.2d 570, 573 (1982) and to "weed out frivolous
claims and limit recovery to significant injuries," Dufel v.
Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 902 (1995).
Defendants contend that Scotto does not suffer from a serious
injury. (Moraldo Affirmation ¶ 9). Defendants rely on the sworn
reports of Dr. Michael J. Katz and Dr. Edward Weiland Dr. Katz,
an orthopedist, examined Scotto on October 4, 2002. (Moraldo
Affirmation, Ex. D at 1). He found a full range of motion in the
cervical and lumboscral spine. Id. at 2. Dr. Katz diagnosed
"cervical strain-resolved" and "lumbosacral strain-resolved." Dr.
Katz believed that Scotto was not disabled and was capable of all
of his daily activities at the current time. Id. at 1. Dr.
Weiland, a neurological consultant, examined Scotto on September
30, 2002, on which date he diagnosed "closed head trauma with
subjective headache disorder," "cervical sprain/strain
resolved," and "lumbosacral sprain/strain resolved." Id. at
3. (Moraldo Affirmation, Ex. ...