The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge
The above-captioned diversity actions, Docket Nos. 08-CV-3250 ("the Thomas case") and 08-CV-3448 ("the Varughese case"), arose out of the same motor vehicle accident on August 14, 2005. Plaintiffs Mary Kutty Thomas, Abraham Thomas, Anitha Thomas, and Ancy Thomas ("the Thomas plaintiffs") brought the Thomas case against defendants Emily O'Brien and Eileen O'Brien ("the O'Brien defendants") on August 8, 2008, seeking damages for injuries sustained by them when a car driven by defendant Emily O'Brien ("O'Brien") collided with a car driven by Thomas Varughese ("Varughese"), in which the Thomas plaintiffs were all passengers. Subsequently, the O'Brien defendants answered the Thomas plaintiffs' complaint and filed a cross-claim against Varughese,*fn1 seeking indemnification for any potential recovery by the Thomas plaintiffs. See O'Brien Defs. Answer (Sept. 18, 2008), Thomas case D.E. #2; O'Brien Defs. Am. Answer (Sept. 26, 2008), Thomas case D.E. #4.
Meanwhile, on August 25, 2008, Varughese initiated the Varughese action against the O'Brien defendants, and the parties in both cases consented to have them handled for all purposes by a magistrate judge. See Consent to Jurisdiction by U.S. Magistrate Judge (Nov. 6, 2008), Thomas case D.E. #11; Consent to Jurisdiction by U.S. Magistrate Judge (Mar. 24, 2009), Varughese case D.E. #14. Because the two cases involved the same parties and factual circumstances, the Court directed that discovery and pretrial proceedings in both matters be coordinated. See Order (Jan. 30, 2009), Thomas case D.E. #18; Varughese case D.E. #11.
On December 8, 2009, the O'Brien defendants filed a motion for summary judgment in the Thomas case against two of the four Thomas plaintiffs -- i.e., Abraham Thomas ("Abraham") and Anitha Thomas ("Anitha") -- alleging that those two plaintiffs failed to meet the threshold requirements for a "serious injury" as defined under New York State Insurance Law §§ 5102(d) and 5104(a). O'Brien Defs. Mot. for Summ. J. (Dec. 8, 2010), Thomas case D.E. #53. The O'Brien motion was joined by cross-claim defendant Varughese. See Varughese Letter (Dec. 8, 2009), Thomas case D.E. #59. For the reasons set forth below, this Court grants summary judgment against Abraham Thomas and Anitha Thomas, and orders the dismissal of their claims in the Thomas case.
On December 18, 2009, Varughese moved for partial summary judgment on liability in the Varughese case, on the ground that no genuine issue of material fact exists that O'Brien "wholly caused the collision, as a matter of law." Pl. Varughese Mot. Summ. J. (Dec. 18, 2010), Varughese case D.E. #42. The Court assumes, for the purposes of this Memorandum and Order, that such motion, if granted, would also dispose of any cross-claims against Varughese in the Thomas matter. However, for the reasons detailed below, this Court concludes that genuine issues of material fact exist regarding the comparative negligence of Varughese, and therefore denies his request for partial summary judgment on liability.
On August 14, 2005, a vehicle driven by Emily O'Brien (and owned by and registered to Eileen O'Brien) collided with a vehicle driven by Thomas Varughese, at the intersection of 80th Avenue and 268th Street in Queens County, New York. See Compl. ¶¶ 8, 9, 26, Thomas case D.E. #1. Both drivers agree that the accident took place at approximately three o'clock in the afternoon (3:00 p.m.). See Deposition of Emily O'Brien ("O'Brien Dep.") at 6 (lines 18--21), Thomas case D.E. #62-2; Deposition of Thomas Varughese ("Varughese Dep.") at 9 (lines 6--9), Thomas case D.E. #61-5.
Prior to the collision, O'Brien had been traveling along 268th Street for approximately five to eight minutes before she came to a traffic stop sign that regulated her entry into the intersection at 80th Avenue. See Pl. Varughese Rule 56.1 Statement ¶¶ 2, 11, Varughese case D.E. #42-3; O'Brien Defs. Rule 56.1 Response ¶¶ 2, 11, Varughese case D.E. #49. Varughese, on the other hand, had been traveling east along 80th Avenue, and there was no stop sign to regulate his entry into the intersection at 268th Street. See Pl. Varughese Rule 56.1 Statement ¶ 12; O'Brien Defs. Rule 56.1 Response ¶ 12.
There is conflicting evidence regarding the clarity of O'Brien's line of sight looking left and right at the stop sign, and whether and when Varughese saw the O'Brien vehicle prior to impact. However, it is undisputed that Varughese had an unobstructed view as he approached the intersection and that O'Brien did not see the Varughese vehicle at any time prior to impact. See Pl. Varughese Rule 56.1 Statement ¶¶ 13, 19; O'Brien Defs. Rule 56.1 Response ¶¶ 13, 19. While both parties also agree that 80th Avenue is "a two-way street with one lane in each direction divided by yellow lines with room for parking on the sides," see Pl. Varughese Rule 56.1 Statement ¶ 6; O'Brien Defs. Rule 56.1 Response ¶ 27, O'Brien further contends (and a photograph confirms) that a bicycle lane on either side separates the traffic lanes from the parking lanes. See O'Brien Defs. Rule 56.1 Response ¶ 27; Pl. Varughese Mot. Ex. J, Varughese case D.E. #46-4.
II. The Injuries to Anitha Thomas and Abraham Thomas
Plaintiffs Anitha and Abraham Thomas were among the passengers in the Varughese vehicle at the time of the accident. Subsequent to the accident, Anitha Thomas complained of injuries to her left shoulder, neck, and left knee. See O'Brien Defs. Rule 56.1 Statement ¶ 6, Thomas case D.E. #56; Thomas Pls. Rule 56.1 Response ¶ 6, Thomas case D.E. #66. Anitha received physical therapy to treat these injuries, which treatment she later terminated by her own choice. See O'Brien Defs. Rule 56.1 Statement ¶ 7; Thomas Pls. Rule 56.1 Response ¶ 7. While plaintiffs appear to agree that Anitha did not immediately miss any time from her employment, they dispute the relevance of that fact because Anitha was on summer vacation from her job as a schoolteacher at the time of the accident. See Thomas Pls. Rule 56.1 Response ¶ 8.
Abraham Thomas also complained of injuries from the August 14, 2005 accident. These injuries were located in his right shoulder, right knee, and back. See O'Brien Defs. Rule 56.1 Statement ¶ 14; Thomas Pls. Rule 56.1 Response ¶ 14. Abraham missed at most one or two days from work after the accident, and received physical therapy for only two and a half months. See O'Brien Defs. Rule 56.1 Statement ¶¶ 15, 16; Thomas Pls. Rule 56.1 Response ¶¶ 15, ...