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Rand v. Volvo Finance North America

May 8, 2007

MARIA RAND, ET AL., PLAINTIFFS,
v.
VOLVO FINANCE NORTH AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiffs Maria Rand, her husband, Archie Rand, and their son, Benjamin Rand (collectively, "plaintiffs") brought suit in New York state court on December 22, 2003 against Volvo Finance North America, Inc. ("Volvo") and Melanie Stern ("Stern"), alleging that Maria and Benjamin Rand were injured in a collision with a vehicle operated by Stern and owned by Volvo. Maria Rand and Benjamin Rand seek damages for the personal injuries they alleged to have suffered. Maria Rand also seeks damages for the value of the vehicle which Benjamin Rand was driving and in which she and her husband were passengers. Archie Rand seeks damages for the loss of society, services and consortium of his wife as a result of her injuries.

The action was removed to this court by defendant Stern on January 29, 2004. Defendants moved for summary judgment pursuant to Fed. R. Civ. Pro. 56, on the ground that plaintiffs Maria Rand and Benjamin Rand have not sustained a serious injury within the meaning of New York State Insurance Law § 5102(d). By order dated October 23, 2006, this court referred the motion to U.S. Magistrate Judge ("MJ") Kiyo A. Matsumoto who issued a Report and Recommendation ("R&R"), dated March 28, 2007, recommending that this court deny defendants' motion for summary judgment in its entirety. Both defendants Stern and Volvo filed timely objections to the R&R on April 6, 2007 and April 11, 2007, respectively. The court incorporates herein the summary of facts as set forth in MJ Matsumoto's R&R. For the reasons set forth below, the court adopts the R&R in its entirety.

Discussion

When reviewing a magistrate judge's report, a district judge must make a de novo determination with respect to those parts of the R&R to which any party objects. See Fed. R. Civ. P. 72(b);28 U.S.C. § 636(b); United States v. Raddatz, 447 U.S. 667, 673-76 (1980). The district judge to whom the case is assigned shall consider such objections and shall adopt, modify, or set aside the magistrate judge's report. Id.

Defendants' sole objection involves the portion of MJ Matsumoto's R&R finding that the absence of medical records showing restrictions in plaintiffs' ranges of motion immediately following the July 24, 2003 accident was not dispositive, but rather an issue of credibility and probative value best considered by the fact-finder. (R&R p. 21 n. 2.) Defendants contend that by not proffering range of motion test results contemporaneous with the accident, plaintiffs' evidence of personal injury failed to meet the statutory threshold set by New York State Insurance Law § 5102(d), commonly known as New York's No-Fault Insurance Law. The court finds no merit to defendants' objection.

New York substantive law governs this action pursuant to the well-settled choice of law principles in diversity actions. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The purpose of New York's No-Fault Insurance Law is to promote prompt resolution of injury claims, limit cost to consumers and alleviate unnecessary burdens on the courts. Pommells v. Perez, 4 N.Y.3d 566, 567 (2005) (citations omitted). In order for an injured party to recover against the car owner or driver for non-economic loss, the injury must be defined as "serious." N.Y. Ins. Law § 5104(a) (McKinney 2007). The No-Fault Insurance Law defines a personal injury as "serious" if it results in:

(1) death;

(2) dismemberment;

(3) significant disfigurement;

(4) a fracture;

(5) loss of a fetus;

(6) permanent loss or use of a body organ, member, function or system;

(7) permanent consequential limitation of use of a body ...


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