The opinion of the court was delivered by: Gary L. Sharpe Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Leslie Williams commenced this action against defendants United States of America, United States Postal Service (USPS), and James W. Hughes*fn1 (collectively "the government") pursuant to the Federal Tort Claims Act (FTCA).*fn2 (See Compl., Dkt. No. 1.) Williams alleges that she was injured in a motor vehicle accident attributable to the negligence of Hughes while he was operating a vehicle owned by the United States of America and USPS within the scope of his employment, and with the knowledge of the owners of that vehicle. (See id.) Pending before the court is the government's motion for summary judgment based upon the absence of "serious injury." (See Dkt. No. 30.) Williams cross-moved for partial summary judgment on the issues of liability and serious injury. (See Dkt. No. 33.) For the reasons that follow, the government's motion is denied, and Williams' cross motion is granted on the issue of liability, but denied in all other respects.
Williams was involved in a motor vehicle accident with a USPS truck
driven by Hughes, who was acting in the scope of his employment with
USPS, on August 24, 2007. (See Dkt. No. 30, Defs.' Statement of
Material Facts (SMF) ¶ 1; Dkt. No. 33, Pl.'s SMF ¶ 57.)*fn4
Upon examination at the hospital, Williams was found to have
no evidence of fracture or dislocation involving the cervical spine or
shoulder, and a normal chest x-ray. (See Defs.' SMF ¶ 25.) Instead,
she suffered soft tissue injuries to her right shoulder and cervical
spine, which resulted in pain and some deficits in her range of
motion. (See Defs.' SMF ¶¶ 26-45; Pl.'s SMF ¶¶ 71, 78-81, 84-89.)
Prior to the 2007 accident, Williams was involved in three other
automobile accidents; as a consequence of those incidents, Williams
suffered injuries to her neck, right shoulder, and back. (See Defs.'
SMF ¶¶ 1-3, 7, 9-12, 15-17.)
Williams commenced this action on August 14, 2009, alleging a FTCA claim based upon Hughes' negligence, and seeking damages. (See Compl.) The government filed an answer, but did not assert lack of serious injury as an affirmative defense. (See Dkt. No. 11.) After the dispositive motion filing deadline passed, the government sought permission to file a late summary judgment motion. (See Dkt. No. 23.) The court granted that request. (See Dkt. No. 25.) The government thereafter moved for summary judgment, and Williams cross-moved for partial summary judgment, as set forth above. (See Dkt. Nos. 30, 33.)
The standard of review pursuant to Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
A. Compliance with N.D.N.Y. L.R. 7.1
As a threshold matter, Williams argues that the government's motion should be denied for noncompliance with N.D.N.Y. L.R. 7.1. (See Dkt. 33, Pl.'s Mem. of Law. in Opp'n to Defs.' Mot. for Summ. J. and in Supp. of Pl.'s Mot. for Partial Summ. J. ("Pl.'s Resp./Cross Mot.") at 3-5.) In particular, Williams claims that an attorney affidavit submitted with the government's motion is improper "[t]o the extent that [it] is intended to verify legal argument and cited cases," and that the government's Statement of Material Facts relies on exhibits to the government's Memorandum of Law, which are supported only by the aforementioned attorney affidavit, in contravention of L.R. 7.1(a)(3). (See id.) The government has submitted a separate affidavit for the purpose of authenticating the exhibits it attached to its Memorandum of Law to remedy any error. (See Dkt. 39, Defs.' Reply to Pl.'s Resp. to Defs.' Mot. for Summ. J. and Defs.' Resp. to Pl.'s Cross Mot. for Partial Summ. J. ("Defs.' Reply/Resp.") at 2-3; Aff. of Margaret B. Baldwin.)
While Williams is correct that the Local Rules require the statement of material facts cite to the record-which consists of "the pleadings, depositions, answers to interrogatories, admissions and affidavits," but not attorney affidavits-the affidavit filed by the government ...