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June 25, 2005.

JOHN BYRNE, Plaintiff,

The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge



A. Introduction

  This action stems from an accident that occurred on the Long Island Expressway in July of 2002. Plaintiff John Byrne alleges that he sustained serious injuries and damage to his property resulting from defendant Oester Trucking, Inc.'s tractor-trailer sideswiping plaintiff's Jeep.

  B. Procedural History

  John Byrne ("Byrne") filed this action in the Supreme Court, County of New York, on February 26, 2003. The action was removed to federal court on April 4, 2003 on the basis of diversity jurisdiction.

  Defendants Oester Trucking, Inc. ("Oester") and Joseph Calvin Drake ("Drake") answered the complaint on August 29, 2003, and on October 15, 2003, the matter was transferred from Judge Batts to the undersigned.

  Presently before the court is the defendants' motion for summary judgment, filed on August 10, 2004.

  C. Facts

  In the early afternoon of July 1, 2002, Byrne was operating his recently purchased 2000 Jeep in the far left lane of the three lane Long Island Expressway heading west, at about exit 21, in Queens, New York. (Byrne Dep. at 10, 15; Drake Dep. at 7, 23). The highway in that area is divided by a cement divider that was approximately five feet from the far left lane. (Byrne Dep. at 21; Drake Dep. at 23).

  Drake was operating a tractor-trailer owned by his employer Oester, Pennsylvania plate number AE56489, in the center lane of the Long Island Expressway in the same vicinity as Byrne. (Complaint at 1; Drake Dep. at 23). Drake was on his way to make a "pick up," having made a delivery on Long Island earlier in the day. (Drake Dep. at 20). Traffic just prior to the time of the accident had been "stop and go" due to construction, but had begun to "open up," and vehicles were beginning to accelerate. Id. at 23-24. At that point in time, according to Drake, there were two stopped vehicles in the center lane in front of Drake's tractor-trailer.*fn1 Id. at 25-26. The vehicle closest to Drake's tractor-trailer was stopped in the center lane behind another vehicle that was half in the center lane and half in the right lane, also stopped. Id. Drake, who had accelerated to approximately 45 mph, upon observing these two stopped vehicles in front of him, forcefully applied his brakes and attempted to steer the tractor-trailer to the left in order to avoid the stopped cars in the roadway. Id. at 28-29.

  Byrne, who was operating his Jeep at a rate of approximately 55-60 mph in the far left lane, was even with the trailer section of Drake's tractor-trailer just before the accident. (Byrne Dep. at 18-19). Upon seeing Drake's tractor-trailer change lanes from the center lane to Byrne's lane, Byrne applied his brakes to avoid being struck by the tractor-trailer. Id. at 23. However, not having at any time observed Byrne's Jeep, the trailer section of Drake's tractor-trailer collided with Byrne's Jeep when Drake entered the left lane, forcing it up and onto the cement divider where it struck a light pole that was situated in the center of the divider. Id. at 24. Byrne's Jeep stopped there, with the two driver side wheels of the Jeep on the left side of the divider and the two passenger side wheels on the right side of the divider. Id. at 24-26. The Jeep was leaning to the right so that the roofline of the Jeep rested against the trailer portion of Drake's tractor-trailer, midway down the trailer. (Byrne Dep. at 25-26; Drake Dep. at 31). Byrne was wearing a seatbelt, which did not tear as a consequence of the impact, and although the Jeep was equipped with air bags, they did not deploy. (Byrne Dep. at 27-28). Resulting from the impact or impacts, the back of Byrne's neck and head hit the headrest. Id.

  Byrne was assisted from his vehicle by emergency personnel and transported to Elmhurst Hospital where he presented complaints of pain in his neck and back.*fn2 (Pl.'s Rule 56.1 Stmt. ¶ 5; Def.'s Rule 56.1 Stmt. ¶ 3). Approximately ten to fourteen days later, Byrne sought treatment from Leonard Harrison, M.D., an orthopedic doctor, complaining of pain in his left hip and lower back, for which Dr. Harrison prescribed physical therapy and painkillers. (Pl.'s Rule 56.1 Stmt. ¶ 14, 17). Byrne saw Dr. Harrison through September 2003. Byrne also attended physical therapy sessions approximately seventy-eight (78) times during the period August 12, 2002 through May 21, 2003, and continued these sessions twice weekly until October 2003. (Pl.'s Rule 56.1 Stmt. ¶ 18, 20; Def.'s Rule 56.1 Stmt. ¶ 6). In addition to the therapy sessions, Byrne followed a home exercise regimen, which he continued to follow through the filing of this action. (Pl.'s Rule 56.1 Stmt. ¶ 21).

  Byrne visited neurologist Jerome M. Block, M.D. on August 8, 2002, complaining of low back pain and of a "pins and needles" sensation along the outer aspect of his left thigh when standing. Id. ¶ 27. Byrne reported that his pain increased while climbing stairs, rolling over in bed, arising from a seated position, and that certain movements of his left leg would cause sharp pain in the same area. Id. Dr. Block reported that Byrne was unable to laterally bend at the waist with the same range of motion as would be expected in a "normal" man of Byrne's age and health, that his ability to tilt to the left was diminished by approximately 25-30%, that attempts to bend to ...

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