The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court are Plaintiffs' Motion for Partial Summary Judgment as to Liability and Serious Injury and Defendants' Cross-Motion for Summary Judgment with Respect to Plaintiff Esmat Bahmanpour on the issue of serious injury.
On July 1, 2004, at approximately 6:50 p.m. on Route 42, Cumberland Head Road, approximately one-tenth of a mile (or 500 feet) west of the intersection of that road with Sunnyside Road in Clinton County, New York, a collision occurred between at least the trailer of a 2003 Kenworth tractor-trailer*fn1 and a 2001 Honda Civic. Defendant Leonard Snide was the operator of the tractor-trailer as an employee of Annette Fancher, who did business under the name of New York Bandit Trucking and was the owner of the tractor trailer. Plaintiff Mohammed Yousefpour was the owner and operator of the Honda Civic. His sister, Mariam Abbott, was a passenger in the back seat of the Honda Civic. Esmat Bahmanpour, the mother of Mr. Yousefpour and Ms. Abbott, was a passenger in the front seat of the Honda Civic.
Immediately before the collision occurred, Mr. Snide was operating the tractor-trailer westbound on Route 42. Mr. Yousefpour was operating the Honda Civic eastbound on Route 42 within the posted suggested speed limit of 15 miles per hour. Mr. Stephen Burdick was operating a 2004 Volkswagen Jetta eastbound on Route 42, with Carolyn Burdick as a passenger in the front seat, immediately behind the Honda Civic being operated by Mr. Yousefpour.
Stephen Burdick states that he saw the front wheel on the driver's side of the tractor-trailer pass over the double-yellow center lie of the roadway and enter the eastbound travel lane. Stephen and Carolyn Burdick state that they witnessed the trailer portion of the tractor-trailer jackknife, which caused the trailer portion to completely cross the center double-yellow line and enter the eastbound lane of travel, where the trailer collided with the front of the Honda Civic.
In his affidavit, Mr. Snide asserts that as he approached the curve, he was traveling approximately 25 miles per hour, but applied the brakes to his vehicle, causing the vehicle to slow down. He states that he reapplied his brakes prior to the curve. Mr. Snide asserts that the right side of the trailer was on or near the right fog line of the highway, and therefore, the left side of the trailer could not be to the left of the center yellow lines. Mr. Snide states that his trailer stayed to the right of the center double yellow line and that the damage to his vehicle and the Yousefpour vehicle was inconsistent with an impact involving a tractor-trailer jackknife. He further states that no collision occurred between the trailer and the front portion of the Plaintiff's vehicle.
It is undisputed that the collision occurred at a curve on Cumberland Head Road. When the collision occurred, Mr. Snide felt a thump. As a result of the collision, Mohammad Yousefpour sustained multiple cervical spine fractures of his neck, a fractured collar bone and rib fractures. As a result of the collision, Mariam Abbott sustained an open fracture of her elbow, skull fracture and fracture of her upper jaw. Plaintiffs assert that as a result of the collision, and seeing her children injured, Esmat Bahmanpour suffered post-traumatic stress disorder and depression. However, Defendant asserts that Ms. Bahmanpour suffered post-traumatic stress disorder with periodic relapses of depression and psychotic depression as a result of being shot and stabbed by her ex-husband in 1982, not as a result of the collision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is awarded when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "In ruling on a motion for summary judgment, the district court is required to 'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)). "A fact is 'material' for these purposes when it 'might affect the outcome of the suit under governing law." Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
"Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Id. at 553-54. However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 554 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) (emphasis added)). "To defeat summary judgment, therefore, nonmoving parties must do more than simply show that there is some metaphysical doubt as to the material facts, and they may not rely on conclusory allegations or unsubstantiated speculation." Id. (internal citations omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. "Although all inferences must be drawn in favor of the nonmoving party, mere speculation and conjecture is insufficient to preclude the granting of the motion." Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007).
Plaintiffs move for summary judgment as to liability. New York State Vehicle and Traffic Law § 1120(a) states that "upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway." "[A] driver in his or her proper lane of travel is not required to anticipate that a vehicle proceeding in the opposite direction will cross over into oncoming traffic." Wasson v. Szafarski, 6 A.D.3d 1182, 1183 (N.Y. App. Div. 2004).
Plaintiffs argue that summary judgment is proper because New York courts have held that, when a plaintiff establishes that a defendant's vehicle crossed over onto the wrong side of the road, into oncoming traffic, and collided with the vehicle plaintiff was in, the plaintiff has established a prima facie case that the negligence of the defendant caused the accident. Arrowitz v. Arrowitz, 279 A.D.2d 440 (N.Y. App. Div. 2001). Plaintiffs cite Cummins v. Rose, 185 A.D.2d 839 (N.Y. App. Div. 1992), in support of their argument that summary judgment is appropriate. There, the court granted plaintiff's motion for partial summary judgment on the issue of liability holding that the defendant was "unquestionably responsible for causing the accident while Cummins was free from culpable conduct." Id. However, in Cummins, three ...