The opinion of the court was delivered by: Townes, United States District Judge
On January 29, 2003, plaintiff Angelica A. Welch ("Angelica") and her sister, plaintiff Theresa E. Welch ("Theresa"), were passengers in an Infinity driven by defendant Wyeler Alexis ("Alexis") and allegedly owned by defendant Franck D. Fils-Aime ("Franck"). Around 9 p.m., while Alexis was making a left turn from Flatbush Avenue onto Church Avenue in Brooklyn, a Honda struck the Infinity on the rear passenger-side door. On May 21, 2003, plaintiffs commenced this diversity action pursuant to 28 U.S.C. § 1332 to recover for injuries that they allegedly suffered during the accident.
Although plaintiffs' complaint alleges that defendant Marguerite A. Hessini was the driver and owner of the Honda, Complaint at ¶¶ 13-14, plaintiffs learned during discovery that she was not involved in the accident, see Letter to Hon. Carol B. Amon from John P. Bostany, Esq., dated March 3, 2004, at 1, and voluntarily dismissed the action against Hessini. See Order dated March 11, 2004. Plaintiffs subsequently dismissed the action as against defendants Alexis and Claude Fils Aime in order to establish complete diversity in this action. See Consent Orders dated May 18, 2005, and October16, 2006. Therefore, Franck is the only defendant still remaining in this action.*fn1
This defendant now moves pursuant to Fed. R. Civ. P. 56 for partial summary judgment, alleging that Angelica has not suffered "serious injury" as defined in section 5102(d) of the New York State Insurance Law (hereinafter "§ 5102(d)), which is necessary to sue for automobile accident-related damages under New York's Comprehensive Motor Vehicle Insurance Reparations Act, N.Y. Ins. Law Art. 51. For the reasons set forth below, defendant's motion is granted and Angelica's action is dismissed.
The Summary Judgment Standard
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant meets this burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial."Fed. R. Civ. P. 56(e); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). The non-movant cannot avoid summary judgment "through mere speculation or conjecture" or "by vaguely asserting the existence of some unspecified disputed material facts." Western World, 922 F.2d at 121 (internal quotations and citations omitted). Moreover, the disputed facts must be material to the issue in the case, in that they "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.
Franck has met his burden of showing that there is no genuine issue of fact as to whether Angelica sustained a "serious injury." In support of his motion, Franck has submitted an affirmation from his attorney, Dominick DeSantis, Esq. (the "DeSantis Aff."), which attaches various exhibits. These exhibits include Angelica's responses to interrogatories (id., Ex. C.); the transcript of Angelica's March 5, 2004, deposition (id., Ex. D); Kings County Hospital records relating to Angelica's treatment immediately following the accident (id., Ex. E) and medical records from a treating neurologist, Dr. Xiao-Ke Gao (id., Ex. F).
According to Angelica's deposition testimony, she was riding in the front passenger seat of the Infinity when the Honda struck its passenger-side rear door. Angelica was struck in the head by the Infinity's rearview mirror and hit her right hand on something inside the car, but could not recall suffering any other injuries. DeSantis Aff., Ex. D, p. 29. Angelica was able to exit the vehicle without assistance and did not remember receiving any treatment from paramedics at the scene. Id. at pp. 36, 39. In contrast, Theresa, who was sitting in the passenger-side rear seat, was knocked unconscious and had to be removed from the vehicle by paramedics. Id. at pp. 33, 36.
Angelica was transported to Kings County Hospital where, according to the hospital records, she complained of pain to her forehead, right side and right arm or elbow. Hospital personnel had the arm X-rayed and determined that it was not broken. They then gave her Motrin and advised her that the bump to her forehead "would go down in a few days." Id. at p. 42. Although Angelica testified at her deposition that she experienced back pain as soon as she exited the Infinity and that she complained of back pain at the hospital, id. at p. 43, that complaint is not reflected in the Kings County Hospital records.
Angelica was not admitted to the hospital and was discharged without any prescriptions. According to the discharge papers, Angelica was advised to "Return to ER immediately if pain gets worse." DeSantis Aff., Ex E. However, Angelica did not seek further medical treatment until February 10, 2003, when she visited the Manhattan offices of Dr. Xiao-Ke Gao, a board-certified neurologist to whom she had been referred by her attorney.
At the time of the accident, Angelica was an eighteen-year-old high school student, who had been employed as a cashier at Express -- a Kings Plaza clothing store -- for approximately two months. DeSantis Aff., Ex. D, at pp. 51, 67. Although Angelica claimed that she was bedridden for "[a]bout two months," id. at pp. 66-67, she also testified that she only missed one week of school and "attempted to go back" to work at Express two weeks after the accident. Id. at pp. 51, 69. Indeed, Angelica was not prevented from returning to work because of physical limitations; she quit after her manager insisted that she provide proof that she had been in a car accident and "made a few smart comments" about Theresa. Id. at p. 53.
Angelica's responses to interrogatories also contradict her claims that she was bedridden for two months. In response to an interrogatory asking plaintiffs to state the periods of time that they were confined to home and bed, Angelica stated that she "was confined to bed and home for a period of 3 weeks following the accident." DeSantis Aff., Ex. C, p. 2.
In response to defendant's motion, Angelica has submitted a memorandum of law which attaches three exhibits: a Declaration of Angelica Welch dated February 10, 2006 ("Angelica's Declaration"); a Declaration of Xiao-Ke Gao dated February 8, 2006 ("Gao's Declaration"); and a more legible and complete copy of the same hospital records which are attached as Exhibit E to the DeSantis Affirmation. Gao's Declaration confirms that Angelica first consulted him on February 10, 2003. The doctor examined her and "found (1) tenderness to the right hand and a right hand contusion; (2) tenderness and pain of the right paraspinal muscles at C3-C7 levels; [and] (3) [a] right hip contusion." Gao's Declaration at ¶ 5. Based on this examination and his review of the hospital records, Dr. Gao opined "that as a proximate result of the . . . accident, Angelica . . . suffered (1) vertigo consisting of dizziness and imbalance; (2) photophobia; (3) throbbing headaches involving the entire head; (4) neck pain radiating to the posterior of the left shoulder; (5) limitation of motion to the least two digits of the right hand; [and] (6) lower back pain radiating to the legs." Id. at ¶ 6. In ...