The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Chi Son Oh and Soo Jin Han bring this diversity action to recover for economic and non-economic losses that they allegedly suffered after sustaining injuries in a car accident with defendant Raymond Leroy Murray, who was operating a tractor-trailer owned by defendant Shore Line Solutions. Following discovery, defendants move for summary judgment on the ground that neither plaintiff sustained a "serious injury" within the meaning of New York Insurance Law § 5102(d). For the reasons set forth below, defendants' motion is denied.
The following facts are taken from the parties' submissions in connection with this motion, including defendants' Local Rule 56.1 Statement ("Def.'s Stmt."). Because plaintiffs have not submitted a corresponding Rule 56.1 statement, in accordance with Local Rule 56.1(c), defendants' Local Rule 56.1 Statement is deemed admitted for the purposes of this motion. Disputes are noted.
Plaintiffs Oh and Han are both residents of New York State. Deposition of Chi Son Oh dated June 23, 2008 ("Oh Dep.") at 3:11-13; Deposition of Soo Jin Han dated June 23, 2008 ("Han Dep."), at 3:11-13. Defendant Murray is a citizen of Canada and a resident of the province of New Brunswick. Declaration of Raymond Leroy Murray dated October 23, 2008 ("Murray Decl."), ¶ 2. At the time of the events leading to this action, defendant Murray was employed by defendant Shore Line Solutions as a long-haul truck driver. Id. ¶ 3. Defendant Shore Line Solutions is also a resident of New Brunswick. Answer ¶ 2.
On June 24, 2007, at approximately 11:00pm, defendant Murray was operating a tractor trailer owned by defendant Shore Line Solutions, traveling south on the Van Wyck Expressway approaching the exit for the Long Island Expressway. Def.'s Stmt. ¶¶ 1-2; Murray Decl. ¶ 4. Approximately one-half to one-quarter mile before the exit, defendant Murray began to slow down his vehicle, intending to move into the exit lane. Murray Decl. ¶ 5. Before moving into the right lane, defendant Murray checked his driver and passenger side mirrors and observed a vehicle in the right lane, later identified as a 2005 Honda Accord operated by plaintiff Han, in which plaintiff Oh was a passenger. Id. ¶ 6; see also Def.'s Stmt. ¶ 3 (noting Han's ownership of vehicle). Plaintiff Han states, however, that her vehicle was never located behind defendant Murray's vehicle. Han Dep. at 27:13-16.
According to defendant Murray, after activating his right directional, he checked his side mirrors a second time 15 to 20 seconds after first checking them, and no longer saw a vehicle behind him. Murray Decl. ¶ 6. As he proceeded into the exit lane, however, he observed plaintiffs' vehicle, which was allegedly half in the right lane and half on the right shoulder, parallel with the passenger side of defendant Murray's tractor. Id. ¶ 7. Plaintiffs' vehicle appeared to defendant Murray to be traveling faster than his vehicle and to have made contact with the Jersey Barrier located to the right of the shoulder and to have been propelled back onto the shoulder, such that the rear driver's side of plaintiffs' vehicle was parallel with the passenger side front bumper of the defendant Murray's vehicle.
Id. The rear driver's side of plaintiffs' vehicle then allegedly made contact with defendant Murray's vehicle's front bumper. Id. According to defendant Murray, the impact of the two vehicles was slight. Id. ¶ 8.
According to plaintiff Han, however, when plaintiff Han first saw defendant Murray's vehicle, it was located in the middle lane, about 20 to 30 feet behind plaintiffs' vehicle. About three to four minutes after first noticing defendant Murray's vehicle, plaintiff Han felt a "heavy" impact from behind. Han Dep. at 25:17-29:8. Plaintiff Oh, a passenger in plaintiff Han's vehicle, did not see defendant Murray's vehicle until it made contact with plaintiffs' vehicle. Oh Dep. at 16:4-12. Plaintiff Oh also reports feeling a "heavy" impact from behind. Id. at 17:16-20.
After the collision, the parties slowed their vehicles and pulled onto the shoulder. Murray Decl. ¶ 9. They called the police, who responded to the scene at approximately midnight. Def.'s Stmt. ¶ 4. Both plaintiffs were thereafter transported to New York Hospital in Queens, New York. Id. They were treated in the Emergency Room, but neither was admitted. Id. ¶¶ 5-7; Han Dep. at 68:4-13; Oh Dep. at 33:16-22.
Following the June 24, 2007 accident, plaintiffs sought treatment for alleged neck, back, shoulder and knee injuries from, inter alia, a chiropractor and a physical therapist, beginning the day after the accident and continuing through the end of 2007 for plaintiff Han, and mid-January 2008 for plaintiff Oh. Han Dep. at 69:25-74:2; Oh Dep. at 34:18-37:14. In December 2007 or January 2008, plaintiffs' no-fault insurance benefits were terminated, and they did not seek further treatment. Han Dep. at 86:24-87:6; Oh Dep. at 45:18-46:7.
The present action was commenced on September 25, 2007.
I. Summary Judgment Standard
A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2003). A fact is material when it "might affect the outcome of the suit under the governing law." Id.
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a "metaphysical doubt" as to the material facts. See Matsushita, 475 U.S. at 586; Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Rather, the non-moving party must produce more than a scintilla of admissible evidence that supports the pleadings. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003). In deciding such a motion the trial court must determine whether "after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
II. New York's No-Fault Insurance Law
New York Insurance Law § 5104(a) provides that in a personal injury or negligence action between insured persons, "there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss." New York Insurance Law § 5102(d) defines "serious injury" to include, inter alia, a personal injury that results in: (1) "permanent loss of use of a body organ, member, function or system" (the "permanent loss" category); (2) a "permanent consequential limitation of use of a body organ or member" (the "permanent consequential limitation" category); or (3) a "significant limitation of use of a body function or system" (the "significant limitation" category).*fn1
The New York Court of Appeals has held that because the purpose of the no-fault statute is to reduce litigation, "[i]t is incumbent upon the court ...