The opinion of the court was delivered by: Azrack, Magistrate Judge
This action, brought by Moon Dal Son ("plaintiff") in New York State Supreme Court, was removed to this Court based on diversity jurisdiction, pursuant to 28 U.S.C. § 1441(a) (Dkt No. 1: 10/09/2007 Notice of Removal). By stipulation, the parties consented to have this case presided over by me for all purposes, including entry of judgment (Dkt No. 13: 07/03/08 Consent to Jurisdiction by U.S. Mag. J.). Presently before the Court is defendants' motion for summary judgment, in which defendants argue that plaintiff has: (1) not made out a case of prima facie negligence; and (2) has not demonstrated injuries rising to the level of a "serious injury" as required by sections 5102(d) and 5104(a) of the New York State Insurance Law. For the reasons stated below, the motion is granted in part and denied in part.
For purposes of this motion, the facts are drawn from the Rule 56.1 Statements ("56.1 St."), declarations and attached exhibits submitted by the parties.
At approximately 8:15 P.M. on the evening of November 21, 2006, a 2005 Volkswagon Beetle operated by plaintiff collided with a tractor-trailer ("Pyle truck") operated by defendant Daniel Lockwood ("Lockwood") and owned by defendant A. Duie Pyle, Lockwood's employer. Both vehicles were traveling northbound on the Clearview Expressway ("Expressway") in Queens County. Following the collision, plaintiff's vehicle struck the rear portion of a tractor-trailer ("Webster truck") operated by Vinny Fotiadis ("Fotiadis") and owned by Webster Trucking Company (both non-parties to this action). As outlined below, the parties dispute significant details of the accident.
At his deposition, plaintiff testified that he was travelling in the center lane of the Expressway when his vehicle was suddenly struck in the rear by a truck. (Son Dep. 28:23-29:24.) Immediately prior to the accident, plaintiff observed the Pyle truck traveling behind him in the center lane. (Id. at 30:4-8.) Plaintiff further testified that, following the impact, he stopped his vehicle in the center lane of the Expressway and immediately lost consciousness. (Id. at 30:24-31:21.)
By contrast, Lockwood testified that he observed plaintiff traveling in the right lane of the Expressway at the time of the accident. (Lockwood Dep. 29:5-7; 30:18-21.) According to Lockwood, plaintiff's vehicle veered from the right lane into the center lane of the Expressway, struck his trailer, then returned to the right lane and collided with the Webster truck. (Id. at 23:11-19.) Following the collision, plaintiff's vehicle came to a stop "underneath the left side of the Webster trailer." (Id. at 45:1-6.)
Fotiadis submitted an affidavit in support of defendants' motion for summary judgment which substantially corroborated Lockwood's deposition testimony. (Defs.' Notice of Mot. Ex. H.) Fotiadis states that, due to an unrelated traffic accident in front of him, he completely stopped the Webster truck in the right lane of the Expressway. (Id. at ¶¶ 3-4.) He further states that he observed plaintiff veer out from behind him in the right lane of the Expressway, travel into the center lane, strike the Pyle truck and finally careen into the rear area of the Webster truck. (Id. at ¶¶ 4-5.)
A report prepared by a New York City Police Department ("NYPD") officer at the scene of the accident reflects the dispute between the parties. (Defs.' Notice of Mot. Ex. G.) According to the report, Lockwood stated to the NYPD officer that his right tire was struck by plaintiff's vehicle; Fotiadis reported that plaintiff's vehicle struck the Webster truck after colliding with the Pyle truck; and plaintiff reported that he did not know what had happened. (Id.) The NYPD officer did not witness the accident. (Id.)
In an affidavit submitted to the Court, plaintiff alleges he sustained various injuries to his neck, back and right knee as a result of the above-described motor vehicle accident. (See Ex. D to Declaration of Lamont K. Rodgers in Opposition to Defendants' Motion for Summary Judgment) ("Rodger's Decl.") According to plaintiff, he is no longer able to engage in normal daily activities and "cannot walk, sit, stand, drive for long periods, or perform household chores." (Id.)
Plaintiff testified at his deposition that following the accident he was confined to his bed for one month and was unable to leave his home for approximately two months. (Son Dep. 53:15-54:3.) Plaintiff further stated that since the accident he suffers from dizziness and ringing in both ears. (Id. at 78:4-25.) He also suffers from sharp pains in his neck, back, right knee and shaking in the upper part of his body. (Id. at 80:20-84:6.) Finally, plaintiff maintains that as a result of his injuries, he was unable to work for a three-month period immediately following the accident. (Id. at 85:10-12.)
C. Plaintiff's Medical Treatment and Examinations
Following the accident on November 21, 2006, plaintiff was transported by ambulance to Long Island Jewish Medical Center, where he was treated and released. (Pl.'s 56.1 St. ¶ 19; Son Dep. 36:16-19.) X-rays taken at the hospital demonstrated a "normal cervical spine" and "normal right knee." (Defs.' Notice of Mot. Ex. J)
On November 27, 2006, plaintiff consulted with Benigno R. Sales, Jr., M.D. (Pl.'s 56.1 St. ¶ 20.) In his "initial consultation" report, Dr. Sales stated that plaintiff suffered post-traumatic cervical sprain radiculopathy; post-traumatic lumbrosacral sprain radiculopathy; knee sprain; and post-traumatic headache syndrome. (Defs.' Notice of Mot. Ex. K.) Dr. ...