The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiffs Rosa Arenes and Andrea Cuello commenced this action on November 18, 2003 to recover damages for personal injuries sustained in a car accident (the "Accident") that occurred on July 8, 2002. On February 27, 2004, Daimler Chrysler Services North America LLC ("Daimler Chrysler"), as successor in interest, following a corporate merger, to defendant Mercedes Benz Credit Corp., filed an answer to the complaint, which asserted a cross-claim against defendant Carol G. Abady for indemnification. Ms. Abady filed an answer to the complaint on April 18, 2004. Discovery, which took place under the supervision of Magistrate Judge Marilyn D. Go, has been completed. Daimler Chrysler now moves for summary judgment on two grounds: (1) plaintiffs' respective personal injuries do not meet the statutory threshold for recovery under New York's No-Fault Law, and (2) defendant Abady's negligence was the sole cause of the Accident. Ms. Abady joins Daimler Chrysler's motion on the first ground, but opposes it on the second ground. For the reasons set forth below, defendants' motions for summary judgment are granted with respect to plaintiffs' claims, and the complaint is dismissed. Further, Daimler Chrysler's cross-claim is dismissed as moot.
Unless otherwise noted, the following facts are not in dispute:
The Accident at issue in this case was a three car collision on the Staten Island Expressway. At the time of the Accident, plaintiffs were passengers in a 1993 Ford driven by Ms. Arenes's son, Richard Sosa, and owned by Sosa Associate, Inc. ("Plaintiffs' Car"). Steven P. McKenna was driving alone in a 2002 Mercedes owned by Daimler Chrysler ("Daimler Chrysler's Car"). Ms. Abady was driving alone in a 1994 BMW that she owned ("Abady's Car"). All three cars were traveling westbound, in succession, in the left lane. Plaintiffs' Car was in front, Daimler Chrysler's Car was in the middle, and Abady's Car was in the rear. The Accident occurred when, in heavy traffic conditions, Daimler Chrysler's Car came to a stop. Abady's Car rear-ended Daimler Chrysler's Car, propelling it into Plaintiffs' Car.
Plaintiffs' Car sustained damage to its rear end and had to be towed from the scene; it was considered a total loss by its owner's insurance company. Abady's Car sustained damage to its front end and also had to be towed from the scene; it was subsequently repaired and is back in use by Ms. Abady. The record does not indicate what, if any, damage was sustained by Daimler Chrysler's Car. In an affidavit, Mr. McKenna states that Daimler Chrysler's Car was equipped with air bags, but they did not deploy during the Accident. He was able to drive the car away from the scene.
At the time of the Accident, Ms. Arenes was 51 years old and unemployed. She testified that she remains unemployed at present, but noted that she does provide child care for a four year old girl who lives in her neighborhood, for nominal compensation. When the Accident took place, she was sitting in the front passenger seat and wearing a seat belt. She sustained injuries to her back and chest, which are discussed in greater detail below. Ms. Cuello was 25 years old at the time of the Accident. She was employed part-time as an office cleaner, earning approximately $500 per month; she remains employed in the same capacity at present. When the Accident took place, she was sitting in the back seat, on the passenger side, and wearing a seat belt. She sustained injuries to her back and right knee, which are discussed in greater detail below.
Neither Ms. Arenes nor Ms. Cuello received medical attention at the scene of the Accident. Approximately one week after the Accident, both plaintiffs sought medical treatment from Pain Management & Rehabilitation, P.C. Each was initially examined by Yelena Itskhoki, M.D., and referred to Jay Garsman, M.D., for MRI tests. On Dr. Itskhoki's advice, they underwent a course of physical therapy. They attended physical therapy sessions together at Pain Management & Rehabilitation, P.C., two to three times per week for approximately seven months. At the end of that period, Dr. Itskhoki concluded that plaintiffs' respective back injuries were permanent and that further treatment would not result in any additional improvement. Neither plaintiff received any further medical treatment related to injuries sustained in the Accident prior to the commencement of this action on November 18, 2003.
In support of its motion, Daimler Chrysler submits affirmations and reports from A. Robert Tantleff, M.D., a radiologist, and Robert S. April, M.D., a neurologist. Ms. Abady also submits the reports of Dr. April, as well as reports from Sheldon P. Feit, M.D., a radiologist. Dr. Feit's reports, however, are neither sworn nor subscribed to under penalties of perjury; as a result, they do not constitute competent evidence and will not be considered by the court. See Baron v. Murray, 268 A.D.2d 495, 495 (2d Dep't 2000).
Dr. April examined both plaintiffs on October 27, 2004 and reviewed their respective medical records, exclusive of the MRI films taken shortly after the Accident. Neither his examination of Ms. Arenes nor his examination of Ms. Cuello yielded objective neurological findings. With respect to both plaintiffs, Dr. April concluded that there was no indication of any neurological injury related to the Accident.
On June 16, 2004, Dr. Tantleff performed an independent radiological review of plaintiffs' MRI films. Concerning Ms. Arenes, he identified various findings with respect to both the cervical and lumbar spines, but concluded that they were the result of a pre-existing degenerative condition. His report states:
The findings are consistent with the individual's age. The findings are a chronic longstanding process requiring years to develop as presented and are not causally related with the individual's traumatic event that occurred on 7/8/02, approximately six weeks prior to the MRI examination as the findings are consistent with wear-and-tear of the normal aging process. Furthermore, it is improbable that a medically uncomplicated traumatic event would be causal of multilevel discal abnormalities in the cervical and lumbar spine. Additionally, there is no evidence of acute traumatic change to the cervical spine.
Tantleff Rep. (Arenes) at 3, annexed to Tantleff Aff. (Arenes).*fn1 Overall, he stated with a reasonable degree of medical certainty that he could find "no objective medical evidence that ROSA ARENES has any residual medical disability from the motor vehicle accident of July 8, 2002." Tantleff Aff. (Arenes) ¶ 5a.
Concerning Ms. Cuello, Dr. Tantleff identified multiple disc bulges in both the cervical and lumbar spines, but again concluded that they were the result of a pre-existing degenerative condition. His report states:
Bulging of a disc is due to desiccation and degeneration and develops over the course of many years. Essentially, this is due to normal wear-and-tear of the aging process.
Acute traumatic injuries such as falls or motor vehicle accidents do not cause bulging. Please note that 35% of asymptomatic individuals aged 20 to 39 manifest disc bulges on CAT Scans or MRI examination. By 60, nearly 100% of asymptomatic individuals display disc bulges.
Tantleff Rep. (Cuello) at 2 (footnote omitted). Overall, he stated with a reasonable degree of medical certainty that he could find "no objective medical evidence that ANDREA CUELLO has any residual medical disability from the motor vehicle accident of July 8, 2002." Tantleff Aff. (Cuello) ¶ 5a.
In opposition to defendants' motions, plaintiffs submitted affirmations and reports from Dr. Itskhoki and Dr. Garsman. Plaintiffs also submitted reports from Larisa Likver, M.D., a neurologist. Dr. Likver's reports, however, are neither sworn nor subscribed to under penalties of perjury; as a result, they do not constitute ...