The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendants move for summary judgment, arguing that plaintiff
has not sustained serious injury under New York State Insurance
Law. For the reasons stated below, the motion is DENIED.
On June 25, 1999, plaintiff Angel Mangual was a passenger in
his mini-van operated by his son, Frankie Mangual, when there was
a collision between his vehicle and an eighteen wheel tractor
trailer operated by defendant Alex Morris Pleas, Jr., and owned
by Pleas's business, defendant Miss Lindsay Trucking. The
collision took place at approximately 10:00 p.m. after the
parties had crossed the George Washington Bridge at the
intersection of the Cross Bronx Expressway and the Major Deegan
Expressway. Dep. of A. Mangual, at 18-22. According to plaintiff Mangual, his vehicle was traveling in
the right lane of traffic immediately in front of defendant
Pleas's tractor trailer. Dep. of A. Mangual, at 24-26. As
defendant Pleas passed Mangual's vehicle and entered into the
left lane, defendant's right front bumper made contact with the
left rear portion of Mangual's vehicle, pushing it to the right.
Id. The Mangual vehicle was moving at the time of contact and
it continued to travel without stopping even after the collision.
Id. By contrast, defendant Pleas avers that he was driving in
the middle lane of traffic when Mangual's vehicle, in an attempt
to pass defendant, shot in front of him and sideswiped the right
front of Pleas's vehicle with the left rear of Mangual's vehicle.
Dep. of A. Pleas Jr., at 29-36.
The police accident report reflects the dispute between the
parties, stating that Mangual alleged that defendant Pleas's
vehicle hit the rear of his vehicle when all of the Expressway's
lanes merged into one lane, while Pleas maintained that the
Mangual vehicle cut Pleas off and hit Pleas. Pl.'s Ex. G. The
report identifies the point of impact and most of the damage as
occurring along the rear lefthand side panel of plaintiff's
vehicle. Id. The report also includes a diagram depicting the
two vehicles at an approximately 130 degree angle, with the
Mangual vehicle angled in front of the Pleas vehicle and the
Pleas vehicle traveling straight-on. The Mangual vehicle appears
to be merging from the right, with its path into Pleas's lane
guided by traffic cones along the right side of the roadway.
Id. According to the diagram, the point of contact between the
two vehicles is the right front of the Pleas vehicle with the
rear left side of Mangual's vehicle. Id.
After the accident, plaintiff received chiropractic therapy for
nine months due to alleged accident-related injuries in his neck
and back. Dep. of A. Mangual, at 44-48; Pl.'s Ex. H. He settled
his claim against Frankie Mangual for $20,000 in March of 2001.
Def.'s Ex. 1. In June of 2002, plaintiffs Angel Mangual and his
wife Jenny Mangual filed this action against defendants. They
charge defendants with negligence and seek damages in the amount
of two million dollars for Angel Mangual's injuries and five
hundred thousand dollars for Jenny Mangual for loss of
companionship, services, and expenditures stemming from the
collision. Pl.'s Ex. A.
On July 31, 2003, plaintiffs moved for partial summary judgment
on the issue of liability on the grounds that 1) plaintiff Angel
Mangual was an innocent passenger at the time of the accident,
and 2) defendant Pleas rear-ended plaintiff Angel Mangual's
vehicle and is therefore presumed liable. Plaintiffs further
averred that because Jennie Mangual had a derivative claim, she
is also entitled to summary judgment on the issue of liability.
On April 6, 2004, plaintiffs' motion for partial summary judgment
was denied because there remained material issues of fact as to
the nature of the collision.
Defendants thereafter moved for summary judgment on June 15,
2004, and that motion is presently before the court.
II. SUMMARY JUDGMENT STANDARD
Under Fed.R.Civ.P. 56(c), summary judgment "shall be
rendered forthwith" if it is shown that "there is no genuine
issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986).
"[G]enuineness runs to whether disputed factual issues can
reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations
omitted). In order to prove that a genuine issue of material fact
exists, a plaintiff "may not rest upon the mere allegations or
denials of the pleading[s]," but must by affidavit or otherwise
"set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). "Conclusory statements,
conjecture or speculation by the party resisting the motion will
not defeat summary judgment." Kulak v. City of New York,
88 F. 3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable
factual inferences in favor of the non-moving party. See Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact
exists. If the evidence [presented by the non-moving party] is
merely colorable, or is not significantly probative, summary
judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998) (internal quotations and citations omitted)
(alteration in original).
A. New York Insurance Law*fn1
Defendants argue that the injuries plaintiffs claim to have
sustained are not sufficiently "serious" within the meaning of §
5102 of the New York State Insurance Law, ...