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Luo v. Mikel

August 30, 2010

YONG QIN LUO, PLAINTIFF-APPELLANT,
v.
STEVEN EUGENE MIKEL JR., ST. MICHAEL MOTOR EXPRESS INC., DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from the May 13, 2009 order and opinion of the United States District Court for the Eastern District of New York (Ross, J.) granting defendants' motion for summary judgment and dismissing plaintiff's complaint alleging negligence and serious injury in a motor vehicle accident. On appeal, plaintiff argues that her willingness to stipulate to a recovery of less than $75,000 on appeal strips the federal courts of subject matter jurisdiction. Alternatively, plaintiff argues that the grant of summary judgment was improper.

Affirmed in part, vacated and remanded in part.

Per curiam.

Argued: February 8, 2010

Before: POOLER , LIVINGSTON, and CHIN, Circuit Judges.*fn1

Plaintiff Yong Qin Luo appeals from the May 13, 2009 order and opinion of the United States District Court for the Eastern District of New York (Ross, J.) granting defendant's motion for summary judgment and dismissing her complaint alleging serious injury sustained during an automobile accident within the meaning of New York Insurance Law § 5102(d). The district court held that plaintiff failed to rebut defendants' prima facie case of serious injury, and granted defendants' motion for summary judgment without reaching the issue of liability. On appeal, plaintiff argues that her willingness to stipulate to a recovery of less than $75,000 on appeal strips this court of subject matter jurisdiction. Plaintiff also argues, in the alternative, that the grant of summary judgment was improper.

Affirmed in part, vacated and remanded in part.

BACKGROUND

Luo was involved in a motor vehicle accident on April 9, 2008 with defendant Steven Eugene Mikel, who was driving a Peterbilt truck owned by defendant St. Michael Motor Express Inc. Plaintiff commenced her lawsuit in New York Supreme Court, Kings County, in June 2008, alleging negligence. The state court action was timely removed by defendants to federal court on the basis of diversity jurisdiction, and it is undisputed that plaintiff did not then seek a remand to state court. Following discovery, defendants moved for summary judgment, arguing (1) they were not liable for the accident and (2) that plaintiff did not sustain a serious injury within the meaning of New York Insurance Law § 5102, barring any recovery.

Defendants supported their motion for summary judgment with a report by Dr. Edward Crane. Dr. Crane examined plaintiff ten months after the accident. Dr. Crane reported "no objective evidence of any orthopedic residuals in regards to her neck, either shoulder, or her back," as a result of the accident. He further reported that Luo's "right knee . . . may have a very minimal loss of terminal flexion. That would have no functional consequence. She has no evidence of internal derangement of the right knee or of an anterior cruciate ligament injury." Defendants also proffered the report of radiologist Dr. Lewis Rothman, who examined plaintiff's MRI images and concluded that there was evidence of chronic degenerative changes but no evidence of traumatic injury. In response, plaintiffs submitted no sworn statements from her treating physicians, relying instead on deposition testimony by her treating physician, Dr. K. Woung Park. Dr. Park testified that Luo lost 10 percent of her range of motion in her right shoulder, and 20 percent of her range of motion of her right knee.

The district court held that defendants submitted medical evidence in admissible form sufficient to establish a prima facie case that plaintiff did not sustain a serious injury within the meaning of New York Insurance Law § 5102(d), shifting the burden to Luo to produce sufficient proof in admissible form to support her claims. Yong Qin Luo v. Mikel, No. 08-CV-2760 (ARR), 2009 WL 1346383, at *5 (E.D.N.Y. May 18, 2009). Finding Luo failed to sustain her burden, the district court granted defendants' motion for summary judgment on the grounds that she did not suffer a serious injury, and did not reach the issue of liability.

ANALYSIS

For the first time on appeal Luo raises the issue of whether subject matter jurisdiction is lacking because the amount in controversy of $75,000 or less. We being by addressing her jurisdictional argument, because if we ...


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