The opinion of the court was delivered by: Levy, United States Magistrate Judge
Defendants Avis Budget Group, LLC ("Avis") and Jennifer Rodriguez ("Rodriguez") (collectively, "defendants") move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that plaintiff Joseph Noll ("plaintiff") did not sustain a "serious injury" within the definition of New York Insurance Law § 5102(d). Additionally, Avis moves for summary judgment claiming it is not liable based on 49 U.S.C. § 30106. By stipulation dated June 19, 2007, the parties consented to have this case referred to a Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, Avis's motion is granted and defendants' motion is denied with respect to the question of "serious injury."
BACKGROUND AND PROCEDURAL HISTORY
This matter arises out of a motor vehicle accident that occurred on April 5, 2005 (the "Accident"). (Defendants' Statement of Material Facts, dated Jan. 31, 2008 ("Defs.' Statement"), ¶ 1.) The facts of the Accident are undisputed. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated Jan. 31, 2008 ("Defs.' Mem."), 3.) Plaintiff was lawfully driving on the service road adjacent to Woodside Boulevard in Queens, New York. (Defs.' Mem. 3.) Rodriguez, driving a rented vehicle owned by Avis, made an unlawful right turn and struck plaintiff's vehicle. (Defs.' Statement ¶ 2; Defs.' Mem. 3.) Plaintiff claims that the impact caused his head to "snap[ ]" and "hit the interior of the vehicle." (Deposition of Joseph Noll, dated Jan. 4, 2008 ("Noll Dep."), 36:5-10.) Plaintiff immediately felt pain, but refused assistance from an ambulance at the scene. (Defs.' Mem. 4; Affirmation of Erik L. Gray, Esq., sworn to Feb. 29, 2008 ("Gray Aff."), ¶¶ 11, 12.)
Plaintiff claims the following injuries as a result of the accident: a posterior herniated disc at L5-S1; bulging discs at C3-C4, C4-C5, C5-C6, and C6-C7; radiculopathy; and lumbar and cervical sprain and strain. (Gray Aff. ¶ 5.) Plaintiff's vehicle also sustained an estimated $13,000 to $14,000 in damages. (Gray Aff. ¶ 9.) Plaintiff does not allege that he missed work or lost earnings as a result of the injury. (Defs.' Mem. 4.)
Since the Accident, plaintiff has not re-injured his back. (Noll Dep. 46:5-10.) However, he states that he continues to experience sharp and constant pain in his neck and lower back and has difficulty bending, turning his head, picking up objects, sitting for work, and walking long distances. (Noll Dep. 121:16-129:10.) Plaintiff's doctor has recommended regular use of TENS units*fn1 and cold packs to reduce pain. (Gray Affirm. ¶¶ 33, 34.)
Plaintiff filed this action in the Supreme Court of the State of New York on March 30, 2007 against Rodriguez, as the driver of the vehicle, and against Avis, as owner or lessee of the motor vehicle, alleging that Rodriguez negligently injured him when making an unlawful right turn. (Verified Complaint, dated Mar. 29, 2007 ("Compl."), ¶¶ 6-14.) Plaintiff seeks monetary damages for the alleged personal injuries he sustained as a result of the collision. (Compl. ¶¶ 11, 15.) On May 9, 2007, defendants removed this action to federal court based on diversity jurisdiction. (Notice for Removal, dated May 8, 2007, ¶¶ 1-10.)
Because the facts of the accident are undisputed, I granted plaintiff's unopposed summary judgment motion against Rodriguez as to liability on December 3, 2007. (See Order, dated Dec. 3, 2007.) The sole remaining issue before the court is plaintiff's claim for non-economic damages. Defendants now move for summary judgment, contending that plaintiff's injuries do not rise to the level of a "serious injury" under New York Insurance Law § 5102(d). (Defs.' Mem. 7-8.) Avis also moves for summary judgment pursuant to 49 U.S.C. § 30106, which exempts non-negligent car rental companies from liability for harm caused by renters. 49 U.S.C. § 30106.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the nonmoving party and determine only whether there is a genuine factual issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). The party seeking summary judgment bears the burden of establishing that no genuine factual dispute exists. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Once the moving party has met its burden, "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Persaud v. URS Midwest, Inc., No. 06 CV 3119, 2007 WL 4556908, at *3 (E.D.N.Y. Dec. 21, 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks & citation omitted)).
Avis argues that it is not liable for plaintiff's injuries based on the Graves Amendment to the Federal Transportation Equity Act, which states that "[a]n owner of a motor vehicle that rents or leases the vehicle . . . shall not be liable under the law of any State . . . by reason of being the owner of the vehicle."*fn2 49 U.S.C. § 30106. (Defs.' Mem. 5.) Plaintiff is suing Avis only because it is the owner and lessee of the vehicle. (Compl. ¶¶ 6, 7.) Accordingly, Avis's motion for summary judgment is granted.*fn3 See Flagler v. Budget Rent A Car System, Inc., 538 F. Supp. 2d 557, 560 (E.D.N.Y. 2008) (dismissing plaintiff's claims against rental company "[b]ecause Congress has, through the Graves Amendment, constitutionally preempted state laws imposing vicarious liability on rental-car companies"); ...