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Jessica Tenzen & Jamie Tenzen v. Susan Hirschfeld

December 5, 2011


The opinion of the court was delivered by: Glasser, United States District Judge

Memorandum and Order

Plaintiffs, Jamie Tenzen ("plaintiff" or "Tenzen") and Jessica Tenzen brought this action pursuant to New York Insurance Law § 5104(a) (the "No Fault Statute"), seeking to recover for personal injuries they allegedly sustained as a result of a car accident with defendant, Susan Hirschfeld. This case was commenced in the Supreme Court of the State of New York, Kings County, and was thereafter removed on the basis of diversity jurisdiction to this court on January 7, 2010. Defendants have moved for summary judgment on the grounds that: 1) Plaintiff Jamie Tenzen did not suffer a "serious injury" as required by the No Fault Statute; and 2) Plaintiff Jessica Tenzen's claim is barred by a release. For the following reasons, defendants' motion is GRANTED IN PART.


The following facts are undisputed, unless otherwise noted.*fn1 On the evening of October 23, 2008, Susan Hirschfeld was driving an automobile owned by defendants Ilan Hirschfeld and Cab East, LLC. Compl. ¶ 28. While traveling east on East 57th Street, New York, New York, Hirschfeld's car rear-ended a car driven by Jessica Tenzen. Compl. ¶ 30. Jessica Tenzen's sister, Jamie Tenzen, was a restrained passenger in the front seat of that car. Id. The force of the collision caused the Tenzens' car to rear-end the vehicle stopped directly in front of theirs. Affirmation of John W. Kondulis dated April 12, 2011 ("Kondulis Aff.") Ex. G at 6-17.

Immediately following the accident, Jamie Tenzen complained of a headache. Id. at 20. She was taken by ambulance to New York-Presbyterian Hospital where x-rays were taken of her neck and back, showing no fractures or other injuries. Id. at 20-22; Opp. Aff. Ex. A. She was released after approximately three hours. Opp. Aff. Ex. A. Tenzen alleges that as a result of the accident, she suffered a herniated disk in her neck, causing a permanent loss of range of motion in her neck, daily pain in her neck and shoulders, and numbness in her arms and fingers. Kondulis Aff. Ex. G.

On April 28, 2010, pursuant to a stipulation of the parties, the Court ordered the dismissal with prejudice of plaintiffs' claims against defendant Cab East, LLC. Kondulis Aff. Ex. D. Thus, the claims remaining before this Court are those brought by Jessica Tenzen and Jamie Tenzen against Susan Hirschfeld and Ilan Hirschfeld.


Diversity of citizenship, which is not disputed, provides a basis for jurisdiction.

See 28 U.S.C. § 1332(a)(1). Plaintiffs are both residents of Kings County, New York. Compl. ¶¶ 1-2. Defendants Susan Hirschfeld and Ilan Hirschfeld are citizens of New Jersey. Notice of Removal ¶ 3. Defendant Cab East LLC is a limited liability corporation incorporated in Delaware, with its principal place of business in Atlanta, Georgia. Id. Plaintiffs seek more than $75,000.00 in damages. Kondulis Aff. Ex. C. ¶ 12.


I.Plaintiff Jessica Tenzen's Release

As an initial matter, the Court considers defendants' motion for summary judgment as to plaintiff Jessica Tenzen. In consideration of $7,500.00, on October 26, 2009 Jessica Tenzen executed a "Release in Full of All Bodily Injury Claims Only," broadly releasing the defendants from all liability for any causes of action prior to the date of the release. Pl.'s R. 56.1 ¶ 13; Kondulis Aff. Ex. F. Plaintiffs have not opposed summary judgment on this matter. Consequently, the Court grants summary judgment for the defendants as to plaintiff Jessica Tenzen.

II. "Serious Injury" and The New York No Fault Statute

New York substantive law governs this diversity action pursuant to well-settled principles governing the choice of law in diversity actions. Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir.1999). New York's No Fault statute for automobile accidents bars recovery for any action by or on behalf of a "covered person" against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state for economic loss. A right of recovery for non-economic loss does exist, however, "in the case of serious injury." Morrone v. McJunkin, No. 98 Civ. 2163, 1998 WL 872419, at *1 (S.D.N.Y.1998); N.Y. Ins. Law § 5104(a) (McKinney 1998). The New York Court of Appeals has long recognized that "the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries." Dufel v. Green, 84 N.Y.2d 795, 798, 647 N.E.2d 105, 107, 622 N.Y.S.2d 900, 902 (1995). "Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system." Licari v. Elliott, 57 N.Y.2d 230, 235, 455 N.Y.S.2d 570, 441 N.E.2d 1088 (1982).

According to New York law, "[w]hether a claimed injury meets the statutory definition of a 'serious injury' is a question of law which may properly be decided by the court on a motion for summary judgment." Martin v. Schwartz, 308 A.D.2d 318, 319, 766 N.Y.S.2d 13, 15 (1st Dep't 2003) (citing Licari, 57 N.Y.2d at 237). Nine categories of injuries may constitute a "serious injury" under the statute:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss or use of a body organ, member, function or system; permanent consequential limitation of a use of a body organ or member; 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 and eighty days immediately following the occurrence of the injury or impairment.

N.Y. Ins. Law § 5102(d) (McKinney 1998).

To demonstrate that her injuries are "serious injuries" entitling her to recovery under the no-fault statute, plaintiff must demonstrate that her injuries fall into one of the nine statutory categories. Plaintiff here does not complain of any injury resulting in dismemberment; significant disfigurement; a fracture; loss of a fetus, or a permanent loss or use of a body organ, member, function or system. The issue, then, is whether she suffered: 1) a permanent consequential limitation of use of a body organ or member; 2) a significant limitation of use of a body function or system; or 3) an inability to attend to her usual activities for a period in excess of 90 days during the first 180 days following the accident.

Summary judgment against a plaintiff who seeks recovery under New York Insurance Law is appropriate when the evidence would not warrant a jury finding that the injury falls within one of the nine statutory categories. Licari, 57 N.Y.2d at 230. Thus, once a defendant establishes a prima facie case that plaintiff's injuries are not serious, the burden shifts to plaintiff to demonstrate that she has endured a serious injury. Morrone, 1998 WL 872419 at *2 (citing Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 991, 591 N.E.2d 1176 (1992)). A plaintiff may defeat summary judgment through admissible evidence in the form of sworn affidavits by physicians. Morrone, 1998 WL 872419 at *2 (citing Bonsu v. Metro. Suburban Bus Auth., 202 A.D.2d 538, 610 N.Y.S.2d 813, 813-14 (2d Dep't 1994); McLoyrd v. Pennypacker, 178 A.D.2d 227, 577 N.Y.S.2d 272, 273 (1st Dep't 1991), appeal denied, 79 N.Y.2d 754, 581 N.Y.S.2d 665, 590 N.E.2d 250 (1992)). Defendants' summary judgment motion may be premised on unsworn reports by plaintiff's physicians, but defendants must provide evidence from ...

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