The opinion of the court was delivered by: John Gleeson, District Judge
FOR ONLINE PUBLICATION ONLY
On December 1, 2004, on Third Avenue near 45th Street in Brooklyn, New York, defendant Renard Mercer, a citizen of New Jersey, drove a tractor trailer into an armored car occupied by plaintiff Bhagwahdatt Persaud, a citizen of New York. On May 19, 2006, Persaud sued Mercer and Mercer's employer (owner of the rig he was driving), URS Midwest Inc., d/b/a URS Midwest ("URS") (a Delaware corporation with its principal place of business in Michigan), alleging that Mercer's negligence caused Persaud to sustain a serious physical injury.*fn1 Defendants filed a notice of removal on June 23, 2006.
The defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that Persaud 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 granted in part and denied in part. It is granted with respect to Persaud's claim of serious injury due to (a) permanent loss or use of a body organ, member, function or system; (b) permanent consequential limitation of use of a body organ or member; and (c) inability to perform substantially all of his usual and customary daily activities for 90 of the 180 days following the accident. It is denied with respect to Persaud's claim of serious injury based on a significant limitation of the use of his cervical and lumbar spine, provided that Persaud file, in admissible form and within three weeks of the date of this opinion, 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 Persaud. On December 1, 2004, Mercer double-parked his tractor trailer in the right-most travel lane on Third Avenue near the 45th Street. Defendants' Rule 56.1 Statement ¶ 1. He left the car to purchase lottery tickets at a nearby store. Id. at ¶ 6. When he returned, Mercer noticed an armored car double-parked directly in front of his. Id. at ¶ 7. In backing out of the space, Mercer made a wide left turn, then a right turn, but as he was entering the travel lane, a car came up on his left side, prompting Mercer to turn sharply to the right to avoid colliding with the car on his left. Id. In doing so, Mercer hit the left rear end of the armored car occupied by Persaud, causing what Persaud felt as a "heavy impact." Plaintiff's Rule 56.1 Counter Statement ¶ 9; Persaud Dep. at 47.
After the collision, Persaud, an employee of Dunbar Armored Car Service, continued to work, making more than ten deliveries that day. Defendants' Rule 56.1 Statement ¶ 10. Upon returning to headquarters, he told his boss that he was in pain because of the accident, but he did not go to the hospital. Defendants' Rule 56.1 Statement ¶ 11; Plaintiff's Rule 56.1 Counter Statement ¶10. Persaud took a week off from work, and returned only to cease working again two days later because of his injuries. Defendants' Rule 56.1 Statement ¶ 12; Plaintiff's Rule 56.1 Counter Statement ¶11. Persaud was then terminated from his employment effective January 14, 2005 for reasons unrelated to the accident. Defendants' Rule 56.1 Statement ¶ 13.
Persaud applied for and received unemployment benefits, indicating on the application that he was able and fit to work. Defendants' Rule 56.1 Statement ¶ 17; Plaintiff's Rule 56.1 Counter Statement ¶17; Persaud Dep. at 75-76.*fn2 In the final week of the period in which he was receiving unemployment compensation (in July 2005), Persaud took a trip to Guyana. Defendants' Rule 56.1 Statement ¶ 11; Plaintiff's Rule 56.1 Counter Statement ¶11. In August 2005, he resumed working for a different security company, Defender Security. In September 2005, Persaud quit that job and joined Rapid Armored Car, working five days a week. Defendants' Rule 56.1 Statement ¶ 18.
Three months before the accident, Persaud had complained of numbness and tingling in his hands and wrists, which was later diagnosed as carpal tunnel syndrome. Persaud does not allege that his carpal tunnel syndrome is in any way causally related to the December 1, 2004 accident. Defendants' Rule 56.1 Statement ¶ 16; Plaintiff's Rule 56.1 Counter Statement ¶ 16.
In the week following the accident, Persaud sought medical treatment for pain in his lower back, shoulder and neck from Dr. Michael Alleyne, who diagnosed Persaud with focal disc herniations at C4-5 and C5-6 and with posterior disc herniations at L1-2 and L5-S1. Plaintiff's Rule 56.1 Counter Statement ¶ 12. Allyne referred Persaud to a neurologist, Dr. Ahmed Elfiky, who examined Persaud first on January 21, 2005 and then again on April 1, 2005. Pl. Ex. B, C. After recommending physical therapy and MRI scans, Elfiky diagnosed Persaud with cervical and lumbar disc herniations, a right shoulder sprain, and a right wrist sprain. Id. Persaud went to physical therapy, received about four MRIs, and continued to receive treatment on a regular basis from Dr. Sujit Bhattacharya (Alleyne's successor) until February 20, 2006. Plaintiff's Rule 56.1 Counter Statement ¶ 12.
Persaud testified in his deposition that he experiences pain in daily living, and that even though he hasn't been placed on "light duty" in the security company, he cannot "lift constantly," nor is he able to bend fully at the knee, stand for long periods of time, or lift heavy items. Persaud Dep. 72-73.
On September 24, 2007, Persaud was examined by Dr. Robert Goldberg, D.O., who was retained by defendants' insurance company. Plaintiff's Rule 56.1 Counter Statement ¶ 19. Goldberg found that there was no objective evidence that Persaud sustained any soft tissue, nerve, nerve root or bony injury in the motor vehicle accident of December 1, 2004 and that "there is nothing to support the diagnosis of cervical or lumbar disc herniations." Def. Ex. K. Additionally, Goldberg opined that Persaud's complaints are inconsistent with videotapes of him bending and squatting easily. Id.
Another physician retained by the defendants' insurance company, Dr. SanfordAntin, examined the MRI scans from after the collision and concluded that there were chronic degenerative changes in the lumbosacral and cervical spine, but no root impingement with either area. Def. Ex. L. He suggests that the disc herniation was related to a degenerative disease and not caused by the accident. Id. Persaud dismisses this opinion because he had never had any complaints of neck, back or shoulder discomfort before the accident. Plaintiff's Rule 56.1 Counter Statement ¶ 22.
Finally, Persaud was examined in February 2005 by Dr. Stephen Zolan, an orthopedist retained by the no-fault carrier. Zolan found that Persaud had sustained "cervical and lumbar sprains, clinically resolved, no clinical evidence of disk herniations"; that he did not require any further orthopedic or physiotherapeutic treatment; and that he was ...