The opinion of the court was delivered by: John Gleeson, United States District Judge
On July 21, 2002, plaintiff Pierre Guito, a citizen of New Jersey, and defendant Vidijanano Prasad, a citizen of New York, got in a car accident on East 21st Street in Brooklyn, New York. On August 25, 2004, Guito sued Prasad and the car's owner, Indranie Prasad (also a New York citizen) alleging that Prasad's*fn1 negligence caused him to sustain a serious physical injury. The defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that Guito (a) cannot prove liability and (b) did not suffer a "serious injury" within the meaning of N.Y. Insurance Law § 5102(d). For the reasons set forth below, the motion is denied on the condition that Guito provide, in admissible form and by January 26, 2007, the medical information on which his opposition to the motion is based.
The following facts are either undisputed or are set forth in the light most favorable to Guito.
On July 21, 2002, at about 5:00 p.m., Guito was driving his Toyota Camry on East 21st Street when he came to a stop sign at Dorchester Avenue. He stopped, looked both ways, saw no cars, and proceeded into the intersection. His car was then hit in the right rear (passenger side) by the car being driven along Dorchester by Prasad. After the accident, Guito was driven by a friend in Guito's car to the hospital, where Guito complained of pain in his back and hands. He was examined and discharged that evening. Guito does not recall whether he was treated for his pain at that time.
Guito returned to his work in a drug store three days after the accident, and he has worked ever since. He testified at his deposition that his neck and back still hurt a little bit when he sweeps the floor at work. Guito also feels pain on occasion when he drives.
Though Guito's testimony regarding his medical treatment was somewhat unclear, he sought chiropractic treatment in Lawrenceville, New Jersey after the accident in 2002, which continued into 2003. He was also seen by Dr. Peter J. Jaffe, D.O., in Moorestown, New Jersey, at the request of his chiropractor. Jaffe wrote three letters to the chiropractor: an evaluation dated September 23, 2002 and "reevaluations" on October 7 and November 4, 2002. The September 23 and October 7 letters report a 75% range of motion restriction (compared to normal) in the cervical spine and a 70% in the lumbosacral spine. The November 4, 2002 letter reports that each had improved to 80% of normal in all planes. The November 4, 2002 letter contains the following impressions: (1) post traumatic cervical sprain and strain, with muscle spasm; (2) post traumatic thoracic sprain and strain, with muscle spasm; (3) post traumatic lumbosacral sprain and strain, with muscle spasm and (4) bilateral carpal tunnel syndrome, per EMG.
Guito had MRIs of his cervical and lumbar spines at Capital Open MRI and Imaging in Hamilton, New Jersey, shortly after the accident.*fn2 They reveal bulges at C5-6 and L4-5 and facet hypertrophy at L4-5 and L5-S1.
A. The Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ. 56(c). The substantive law governing the case determines the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict of the moving party." Id. Moreover, "the inferences to be drawn from the underlying facts -- must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts -- [T]he non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 586-87.
Defendants contend first that they are entitled to judgment as a matter of law because a rational jury could not find that Prasad was negligent. I disagree. It is undisputed that Prasad had the right of way, and that he collided with Guito in an intersection at which Guito had a stop sign. But Guito testified at his deposition that he had obeyed the stop sign, and that the collision happened because Prasad hit the rear right side of his car after Guito had properly entered the intersection. Viewing the evidence in the light most ...