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Rogers v. McLamb

September 22, 2006

JUDITH A. ROGERS, PLAINTIFF,
v.
DOUGLAS W. MCLAMB, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

This is a personal injury action arising out of an automobile accident; jurisdiction is predicated on diversity of citizenship. Defendant moves for an Order pursuant to Fed.R.Civ.P. 56, granting summary judgment dismissing plaintiff's claim for non-economic loss on the ground that there is insufficient evidence to give rise to a genuine issue of fact that plaintiff has suffered a "serious injury" as that term is defined by New York Insurance Law § 5102(d). The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).

For the reasons set forth below, defendant's motion is granted.

II. Facts

This action arises out of a collision that took place on December 13, 2002. At that time, an automobile owned and operated by plaintiff Judith Rogers collided with a tractor-trailer owned and operated by defendant Douglas McLamb on the Westbound Brooklyn Queens Expressway near its intersection with Sands Street in Brooklyn (Complaint, ¶¶ 5-12). Plaintiff did not request any medical assistance immediately after the collision, nor did she go to a hospital at that time (Judith Rogers' Deposition ("Rogers' Dep.") at 111, annexed as Ex. F to Answering Affirmation of Scott Stern, dated January 10, 2006 ("Stern Aff.") (Docket Item 23)). The police arrived at the scene and completed an accident report. Plaintiff then drove her car to her home in New Jersey (Rogers' Dep. at 118).

Plaintiff sought medical treatment from Dr. Praful Shah approximately two weeks after the accident (Rogers' Dep. at 124).*fn1 Plaintiff complained to Dr. Shah of sharp pains in her neck and back, was prescribed pain medication and was referred for an MRI of the cervical and lumbar spine (Stern Aff., Ex. A). The MRI of the cervical spine was conducted on January 7, 2003 and revealed that plaintiff had a disc protrusion at C5-C6 with impingement of the right C5 nerve root, although there was no showing of cord compression or migration of disc material (Stern Aff., Ex. A). Plaintiff has also submitted the affirmation of the radiologist who took the MRI, who characterized it as showing "a disc protrusion (herniation) at C5-C6" (Affirmation of Dr. Sam Mayerfield, sworn to December 13, 2005 ("Mayerfield Aff."), annexed as Ex. B to Stern Aff., ¶ 4). The MRI of the lumbar spine disclosed a disc bulge at the L4-L5 level, but there was no evidence of disc herniation (Stern Aff., Ex. A).

On January 27, 2003, plaintiff was seen by Dr. Melyssa Paulson, an orthopedist, who noted that she believed plaintiff was suffering from "musculoligamentous sprains of the cervical and lumbar spine status post motor vehicle accident, with mild cervical degenerative joint disease" (Stern Aff., Ex. C). Dr. Paulson prescribed Celebrex and referred the plaintiff for physical therapy (Stern Aff., Ex. C).

Dr. Paulson examined plaintiff again on May 8, 2003, at which time plaintiff told Dr. Paulson that the preceding two weeks had been "very bad" and that she continued to get stiffness and pain in her lower back after sitting for short periods of time (Stern Aff., Ex. D). Dr. Paulson recommended that plaintiff receive sacroiliac joint steroid injections, which plaintiff received on June 23, 2003, June 30, 2003, and July 21, 2003 (Stern Aff., Ex. E).

Plaintiff testified that she was on disability from December 13, 2002 until she was cleared to return to work on August 18, 2003 (Rogers' Dep. at 19-20). The plaintiff's employer during this time, Prudential Insurance, paid plaintiff her full salary for three months of her absence and two-thirds of her salary for the balance (Rogers' Dep. at 19-20).

III. Analysis

A. Summary Judgment Standard

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). In deciding such a motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-movant's favor. Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995). See also Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997).

Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party, in order to defeat the motion, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

B. The Parties' Arguments

Because the Court's jurisdiction in this matter is based on diversity of citizenship, New York substantive law governs this action. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). New York's "no fault" insurance law limits recovery for non-economic injuries sustained in motor vehicle accidents such as the one at issue here. Specifically, New York Insurance Law § 5104(a) provides:

Notwithstanding any other law, in any action by or on behalf of a covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.

"Basic" economic loss is defined as economic loss of up to fifty thousand dollars per person of medical expenses, lost wages or other "reasonable and necessary expenses" of up to twenty-five dollars per day for not more than one year after the accident. New York Ins. Law § 5102(a). Plaintiff has not submitted any evidence that her economic loss exceeds this threshold. Thus, the damages sought by plaintiff are limited to "non-economic" loss which are defined by New York Insurance Law § 5102(c) as "pain and suffering and similar non-monetary detriment." Accordingly, Section 5104(a) ...


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