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September 8, 2005.


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


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.


  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, ...

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