The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendants' motion for summary judgment (Docket No. 19*fn1 ). Responses to this motion were due on or before July 30, 2009, and any reply was due by August 13, 2009, and the motion was deemed submitted (without oral argument) on August 13, 2009 (Docket No. 22). The parties consented to proceed before the Magistrate Judge on May 8, 2008 (Docket No. 12).
This is a removed personal injury action, based upon diversity jurisdiction (Docket No. 1, Notice of Removal). The case arose from an incident on April 25, 2005, in which plaintiffs, New York State residents Michael and Kristine Ciesiulka, allegedly were injured when their vehicle was struck by a tractor trailer operated by defendants Pennsylvanian Joseph Rebovich and owned by Wisconsin limited liability corporation Reinhart Transportation (id. Notice ¶¶ 2-6*fn2 ). The Complaint alleges that Rebovich, an employee of Reinhart Transportation, operated a tractor trailer that struck the vehicle driven by Michael Ciesiulka (or "Michael") and in which Kristine Ciesiulka (or "Kristine") was a passenger (id., Ex. B, Compl. ¶¶ 4, 14, 18, 5-6). While driving on Genesee Street, in Cheektowaga, New York, near a hotel driveway, defendants' tractor trailer allegedly struck the left side of plaintiffs' vehicle (id. ¶¶ 16, 18). Plaintiffs claim that they suffered "serious injuries as defined in the New York State Insurance Law" (id. ¶ 21), suffering serious and permanent physical injuries and damages in excess of state jurisdictional limits (id. ¶ 22). At issue in this motion is whether plaintiffs suffered a "serious injury" under New York Insurance Law § 5102(d) or economic loss under § 5104 of the Insurance Law (Docket No. 19, Notice of Motion). In their Interrogatories responses, plaintiffs allege entitlement to damages of $450,000 for Michael and $150,000 for Kristine (see Docket No. 20, Defs. Memo. at 3 n.2).
Defendants Rebovich and Reinhart Transportation answered (see Docket No. 4) as they filed the Notice of Removal (Docket No. 1). Among their affirmative defenses, these defendants asserted that the accident described in the Complaint did not result in a "serious injury" under Insurance Law § 5102(d) or economic loss greater than basic economic loss as defined in Insurance Law § 5104 (Docket No. 4, Ans. ¶ 27).
After mediation (see Docket Nos. 15, 16), defendants filed the pending motion for summary judgment (Docket No. 19).
According to defendants' statement of undisputed facts (Docket No. 21) as accepted by plaintiffs (see Docket No. 24), according to the police report from this accident, neither plaintiff was transported to the hospital following the accident, Michael Ciesiulka did not make any complaint of injury and Kristine Ciesiulka complained of pain to her knee (Docket No. 21, Defs. Statement ¶ 1), but the police report did not indicate which knee (see Docket No. 19, Defs. Atty. Affirm., Ex. A). In his responses to Interrogatories, Michael Ciesiulka alleged that he sustained the following injuries as a result of the accident: left knee pain; left sided cervical spine pain; neck pain radiating to the left arm, shoulder, and face; mild C2-C3 disc bulge; moderate C3-C4 central disc bulge; C4-C5 small central disc bulge; C5-C6 mild spondylosis and disc space narrowing with dorsal osteophyte and disc bulge with mild left foraminal stenosis due to facet and uncovertebral hypertrophy; C6-C7 mild disc bulge; and multiple level disc bulges with degeneration, and osteophytes; and neck tenderness to palpation, with cervical paraspinal muscle spasm (Docket No. 21, Defs. Statement ¶ 4). Kristine Ciesiulka alleges she sustained head, neck, back and left knee pain with contusions, swelling, and bruising; upper left thigh tenderness; cervical sprain; right ankle sprain; post-concussive syndrome; occasional headaches; generalized weakness and numbness; difficulty sleeping; occasional fatigue; blurred vision; ringing in the ears with vertigo; nausea; muscle aches; moodiness; anxiety/depression; post-traumatic headaches and vertigo; and myofascial pain due to trauma (id. ¶ 5). While plaintiffs allege that their medical bills were covered by no-fault insurance, according to their insurer, Michael Ciesiulka had $4,826.24 in no-fault payments while Kristine Ciesiulka had $2,566.04 in no-fault payments (id. ¶¶ 6-7). Defendants argue that plaintiffs did not provide bills, receipts or other documents as to their injuries or economic damages (id. ¶ 8), but plaintiffs in their statement of facts contend that information was provided about Michael's employment and the fact that he had to give up a higher paying job in order to allow him to return to work due to his injuries (Docket No. 224, Pls. Statement ¶ 8).
In support of this motion, defendants produced the deposition testimony of plaintiffs (Docket No. 19, Defs. Atty. Affirm. ¶ 12, Ex. G; Docket No. 21, Defs. Statement ¶¶ 9-28).
Plaintiffs argue that there are issues of material fact as to preclude summary judgment (Docket No. 25, Pls. Memo.). Defense independent medical examiner ("IME") Dr. John Ring (among other examiners, see Docket No. 23, Pls. Atty. Decl. ¶¶ 1-15*fn3 ) found that plaintiffs' injuries were causally related to the accident (Docket No. 24, Pls. Statement, Facts in Dispute ¶¶ 1-2). Plaintiffs list various medical conditions stemming from this accident (id. ¶¶ 4-6) with Michael Ciesiulka claiming that he has been unable to work on his home or vehicles since the accident (id. ¶ 2).
Defendants reply that they met their burden of establishing entitlement to summary judgment in that they produced evidence (plaintiffs' deposition testimony, the reports of examining and treating physicians) that show that plaintiffs cannot meet the "serious injury" threshold (Docket No. 26, Defs. Atty. Reply Affirm. ¶ 3). Plaintiffs invoke three categories of "serious injury" under Insurance Law § 5102, permanent loss of use of a body organ, member, function or system; a permanent consequent limitation of a body organ or member permanent consequential limitation of use of a body organ or member; or significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. Defendants conclude that plaintiffs cannot establish the threshold for any of these categories as a matter of law. (Id. ¶ 4.) They contend that the record does not support plaintiffs' contentions of serious injury (id. ¶ 5). They argue that plaintiffs concede that they did not suffer more than $50,000 in economic loss, hence plaintiffs' claims are limited to the "serious injury" threshold (id. ¶ 6).