The opinion of the court was delivered by: Gershon, United States District Judge.
Plaintiff commenced this action on April 10, 2003 to recover damages for personal injuries sustained in a car accident. Issue was joined on June 30, 2003 and, under the supervision of Magistrate Judge Cheryl L. Pollak, discovery has been completed. Defendants now move for summary judgment on the ground that plaintiff's injuries fail to meet the threshold for recovery under New York's No-Fault Law. For the reasons set forth below, defendants' motion for summary judgment is granted.
Unless otherwise noted, the following facts are not in dispute:
On April 22, 2000, a car driven by plaintiff Antoine Gex, a 36 year old male, was involved in a collision (the "Accident") with a car driven by defendant Jean Limontas and owned by defendant Ronald Desrosiers. As a result of the Accident, plaintiff sustained injuries to his neck, back, left wrist, and left knee. Plaintiff did not receive medical attention at the scene of the Accident, but did go to the emergency room at Calendonian Hospital the next day, where he was examined, treated, and released. Within one week after the Accident, plaintiff began a course of physical therapy at Big Apple Medical Care. He attended physical therapy sessions three times per week for approximately nine months. An x-ray of plaintiff's cervical spine was taken on May 9, 2000. MRIs of plaintiff's cervical spine and left knee were taken on May 11, 2000. A CAT scan of plaintiff's head was taken on May 9, 2000. An MRI of plaintiff's lumbosacral spine was taken on May 22, 2000. An x-ray of plaintiff's left wrist was taken on June 5, 2000. Besides the foregoing, plaintiff received no other medical treatment related to injuries sustained in the Accident prior to the commencement of this action on April 10, 2003.
At his deposition, plaintiff was asked to identify the activities that, as a result of the Accident, he could no longer perform or could perform only in a limited manner. Plaintiff testified that his injuries require him to use extra effort in getting out of bed in the morning. "[W]aking up in the morning is an exercise. Because when I wake up in the morning, it takes a while to-- I guess my muscles have to warm up before I can start moving about." Pl.'s Dep. at 47. He also testified that his injuries have rendered him unable to play soccer and basketball and make it difficult for him to sit in a car for long periods of time. Further, plaintiff testified that he must be "careful" when dancing to avoid aggravating his injuries and that he has experienced a decreased sex drive since the Accident. Pl.'s Dep. at 48. At the time of the Accident, plaintiff was employed part-time as a substitute teacher; he is currently employed full-time as a French teacher. At no time following the Accident was plaintiff confined to his home or forced to miss work.
On June 21, 2004, plaintiff was examined by two doctors on behalf of defendants, Howard Baruch, M.D., an orthopedist, and Daniel J. Feuer, M.D., a neurologist. Their reports, made under the penalties of perjury, were submitted by defendants in support of their motion for summary judgment. Dr. Baruch examined plaintiff's spine and knees, performed various range of motion tests, and reviewed plaintiff's medical records, including the MRI films taken of plaintiff's spine following the Accident. His report indicates that his physical examination of plaintiff demonstrated no objective findings and the plaintiff has no orthopedic disability. Dr. Feuer performed a neurological examination of plaintiff and reviewed plaintiff's medical records, including the CAT scan taken of plaintiff's head following the Accident. His report indicates that plaintiff did not demonstrate any objective neurological disability during his examination and that plaintiff is neurologically stable to engage in full active employment as well as full activities of daily living without restriction. On behalf of defendants, a third doctor, Sheldon P. Feit, M.D., a radiologist, reviewed the MRI films taken of plaintiff's spine following the Accident. Dr. Feit concluded that plaintiff had no abnormalities of either the cervical spine or the lumbosacral spine causally related to the Accident. A report made by Dr. Feit was also submitted by defendants in support of their motion for summary judgment.
On May 13, 2005, plaintiff was examined by Dr. Boris Tsatskis. At oral argument, plaintiff's counsel identified Dr. Tsatskis as an M.D. who specializes in physical rehabilitation. An affirmation by Dr. Tsatskis was submitted by plaintiff in opposition to defendants' motion for summary judgment. Dr. Tsatskis conducted a physical examination of plaintiff and reviewed plaintiff's medical records, including the MRI films taken of plaintiff's spine following the Accident. He concluded that plaintiff has bulging discs at C3-4 and L5-S1 and range of motion deficits that are causally related to the Accident. Although he describes the range of motion deficits quantitatively, he does not indicate what tests he performed nor what, if any, instruments he used to measure plaintiff's range of motion. Dr. Tsatskis also concluded that plaintiff's range of motion deficits constitute a "permanent partial disability" and that "the prognosis for any type of full recovery" is "doubtful." Tsatskis Aff. ¶ 14.
During his deposition, plaintiff testified that he could not recall whether, prior to the Accident, he ever injured his neck, back, left wrist, or left knee, nor if he had ever received physical therapy. However, the report prepared by Dr. Feuer following his examination of plaintiff, which occurred subsequent to plaintiff's deposition, notes, under the heading "Past Medical History," that: "The claimant was involved in a motor vehicle accident in 1996 in which he sustained similar injuries and underwent therapy treatments." Feuer Rep. at 1.
I. General Principles of New York's No-Fault Law
In 1973, the New York State Legislature enacted the Comprehensive Automobile Insurance Reparations Act, N.Y. Ins. Law §§ 5101-5108 (McKinney 1973), commonly referred to as the "No-Fault Law," with the objective of promoting prompt resolution of injury claims, limiting cost to consumers, and alleviating unnecessary burdens on the courts. Pommells v. Perez, 4 N.Y.3d 566, 570-71 (2005). Pursuant to the No-Fault Law, every car owner must carry automobile insurance that will compensate injured parties for "basic economic loss," up to $50,000, occasioned by the use or operation of that vehicle in New York State, irrespective of fault. N.Y. Ins. Law §§ 5102(a), 5103; Pommells, 4 N.Y.3d at 571. Non-economic loss is not compensable, and no law suit to recover damages for such loss may be filed, unless the claimant has suffered a "serious injury." N.Y. Ins. Law § 5104(a). The No-Fault Law thus provides a compromise: prompt payment for basic economic loss to injured persons regardless of fault in exchange for a limitation on litigation to cases involving serious injury. Pommells, 4 N.Y.3d at 571. The statute defines "serious injury" as follows:
"Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a 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 daily ...