The opinion of the court was delivered by: John Gleeson, United States District Judge
On September 20, 2002, on Second Avenue and East 4th Street in Manhattan, Beau Burtnick, the operator of a car owned by defendant Ralph Maresco, entered into a collision with the car of plaintiff Davinder Singh. On October 23, 2002, Singh, a citizen of New York, sued Maresco and Burtnick,*fn1 both citizens of New Jersey, alleging that Burtnick -- and by extension, Maresco -- negligently caused Singh to sustain severe and permanent injury. The action was filed in Supreme Court, New York County.
Maresco filed a notice of removal on April 5, 2004. The defendant now moves 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, defendant's motion is granted.
The following facts are either undisputed or are set forth in the light most favorable to Singh. On the night of September 20, 2002, Singh, a New York City cab driver, was driving his taxi southbound on Second Avenue. Singh Dep. 10. Hailed by a woman*fn2 standing on the corner of East Fourth Street and Second Avenue, Singh changed lanes in order to pick her up. Id. at 11. He came to a full-stop in the right-most lane to pick up the fare. Id. at 14. As the woman attempted to open the car door, the right rear end of Singh's car was hit from behind by the front left end of Maresco's vehicle damaging Singh's right rear bumper and break lights. Id. at 14-17. The police accident report described it as a "minor motor vehicle accident with little to no damage." Def.'s Mem. Ex. I.
Upon the impact, Singh felt a severe pain in his leg, and then felt pain throughout his body. Singh Dep. 17. The impact caused his kneecap to hit the corner of the door. Id. at 63. Fifteen to twenty minutes later, police arrived on the scene and an ambulance brought Singh to Beth Israel Medical Center. Id. at 25, 31. When he arrived at the hospital, Singh complained of pain in his leg, back, neck and face; his leg had not been bruised. Id. at 33, 63. According to the initial triage assessment at Beth Israel Medical Center, Singh's chief complaint was of lower back pain, with no mention of pain in or injury to his left leg from the accident. Def.'s Reply Br. Ex. A. Only when he was later examined by a physician did he complain of leg pain. Id. Singh stayed in the hospital overnight.
Singh had been injured before the September 2002 accident. In March 2001, he was in a Jeep that was struck by a bus in India, and he suffered a fracture of his left leg. Singh Dep. 45. According to Singh, "he had undergone open reduction and internal fixation of [the] fracture in India. Pl.'s Mem. Ex. A at 2. When asked if he could access the medical records from the hospitals in India, Singh stated that the hospitals do not maintain medical reports and it would be impossible to retrieve any records years later. Singh Dep. 45-48. He was treated by doctors in India who placed an intramedullary rod in his left thigh and performed knee surgery on the same day. Id. at 47; Def.'s Mem. Ex. J.
After his release from the hospital the day after the accident, Singh was referred to Dr. Andrew Rosen of Beth Israel for surgery for his leg. Singh Dep. 33-34. Singh was also treated by an orthopedic surgeon, Dr. Carr, to whom Singh was referred by his attorney. Singh Dep. 35. Dr. Carr treated his neck and back, assisted him in physical therapy, and prescribed medication. Id. at 36. Singh also visited Dr. Amato who helped him with physical therapy for about five to six months. Id. at 39. After the accident, Dr. Amato took an MRI of his neck and back. Id. at 43.
Dr. Rosen treated Singh from September 27, 2002 through December 2007 for problems with his left leg. Pl.'s Ex. A. Rosen's x-rays revealed the femur fracture suffered in 2001, and demonstrated a pattern of nonunion. Rosen stated that "it appears that . . . [the] September 20, 2002 accident disrupted a stable fibrous non-union supported by an intact intramedullary rod" and that "displacement of the patellar K-wires may have also been affected by the second injury although without pre-injury x-rays it would be impossible to determine." Pl.'s Ex. A 2. On November 25, 2002, Singh underwent surgery for his leg.
Singh made conflicting statements in his deposition as to whether he worked after the accident. He testified that the day after the accident he went to work, and then he worked part-time (three to six hours a day) for the next three months. Def.'s Mem. Ex. G 41. He also testified that after the accident and after the surgery he could not work for two months, and then when he did start working, he could only work part-time. Singh Dep. 52, 65. About a year ago, Singh got into another car accident in Queens, but he was not injured. Still, he was taken to Jamaica Hospital for x-rays. Id. at 56-57.
Singh's surgery after the September 2002 accident at issue here included the removal of the rod, reaming of the femoral canal and placement of a new larger rod. The K-wire and wires in the knee were also removed. Pl.'s Ex. A. Rosen monitored Singh's progress over the next five years, and noted that days after the surgery, Singh's wound sites healed well and that he had initiated a course of physical therapy. By January 2003, Rosen found that Singh's knee was "improving." Id. By January 6, 2004, Rosen reported that Singh's thigh was "completely improved." Id. A recent x-ray taken on December 12, 2007 revealed that the femoral fracture had completely healed, and that the left knee showed mild patellofemoral joint narrowing. Pl. Ex. A. In his report, however, Rosen does not explain the significance of such joint narrowing.
As of the date of his deposition, March 9, 2005, Singh was working six days a week, between eight and ten hours a day. Singh Dep. 64. Defendant's doctor, Dr. Crane, examined Singh on September 5, 2006 and did not observe evidence to support Singh's claimed injury. Def.'s Mem. Ex. J.
A. The Summary Judgment ...