United States District Court, S.D. New York
SAMANTHA LIZARRA, an infant over the age of 14 years, by her Father and Natural Guardian, CANDIDO LIZARRA, and CANDIDO LIZARRA, Individually, Plaintiffs,
MIGDALIA FIGUEROA and LISA C. FIGUEROA, Defendants.
ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT
FRANK MAAS, District Judge.
This case is before me for all purposes following the parties' consent pursuant to 28 U.S.c. § 636(c). (ECF No.8). Presently pending before the Court are two cross-motions for summary judgment. For the reasons set forth below, the plaintiffs' motion for partial summary judgment as to liability (ECF No. 30) is denied, and the defendants' motion for summary judgment (ECF No. 11) is granted in part and denied in part.
The following facts are either undisputed or set forth in the light most favorable to plaintiff Samantha Lizarra ("Lizarra").
On November 10, 2011, Lizarra, then seventeen years old, was crossing an intersection in Queens, New York, at a crosswalk. A car driven by defendant Lisa Figueroa and owned by defendant Migdalia Figueroa struck Lizarra's left side, after which she fell on her right elbow. After the accident ("November 10 Accident"), Lizarra was unable to walk; she was transported to New York Hospital in Queens, where she eventually complained of pain in her left knee, hip, and lower back. Lizarra was hospitalized until November 14, 2011. When she was discharged, she was instructed to use a walker. Lizarra spent two weeks in bed at home, after which she was confined to her home for an additional ten months, except for visits to the hospital and her doctors.
On June 24, 2011, less than five months before the November 10 Accident, Lizarra was a passenger in a vehicle that was rear-ended. On that occasion ("June 24 Accident"), Lizarra complained of, among other things, an injury to her left knee. Lizarra was treated by an orthopedic surgeon, Dr. Jeffrey Cohen, after both accidents. After more conservative treatment failed to alleviate Lizarra's pain, Dr. Cohen performed arthroscopic surgery on her left knee in February 2012. Dr. Cohen further recommended that Lizarra have surgery to repair her right shoulder, but that surgery had not occurred by the date the cross-motions were filed because Lizarra was pregnant at the time. She delivered that baby in or around November 2012.
II. Relevant Law
A. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate only when "the movant shows that there is no genuine dispute as to any material fact" based on supporting materials in the record. Fed.R.Civ.P. 56. "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' A fact is material if it might affect the outcome of the suit under the governing law.'" Roe v. City of Waterbury , 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). The non-moving party therefore cannot defeat a motion for summary judgment simply by relying upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986).
In deciding a motion for summary judgment, the Court must "view the evidence in the light most favorable to the party opposing summary judgment and must draw all permissible inferences" in favor of that party. Harris v. Provident Life & Accident Ins. Co. , 310 F.3d 73, 78 (2d Cir. 2002) (quoting Gummo v. Village of Depew , 75 F.3d 98, 107 (2d Cir. 1996)); Fischl v. Armitage , 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Sousa v. Roque , 578 F.3d 164, 166 n.1 (2d Cir. 2009). Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the Court. Fischl , 128 F.3d at 55; see also Fed.R.Civ.P. 56(e) 1963 advisory committee's note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl , 128 F.3d at 55.
B. Duty of Care
Section 1146 of the New York Vehicle and Traffic Law requires that "every driver of a vehicle... exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary." Section 4-04(b)(2) of Title 34 of the Rules and Regulations of the City of New York provides that "no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield." In addition, Section 4-05(a) of Title 34 provides that, "[w]henever a traffic control device regulates any turn or other movement at an intersection or other location, no operator of any vehicle shall disregard the direction of such device, unless directed to do so by a law enforcement officer." Section 4-04(d) further provides that, "[n]otwithstanding other provisions of these rules, the operator of a vehicle shall exercise due care to avoid colliding with any pedestrian."
C. New York No Fault Law
New York's No Fault Law, N.Y. Ins. Law § 5101, et seq., is intended to "significantly reduce the number of automobile personal injury accident cases litigated in the courts." Lopez v. Senatore , 65 N.Y.2d 1017, 1020 (1985) (quoting Licari v. Elliott , 57 N.Y.2d 230, 236 (1982)). As a consequence of its enactment, a person who suffers only "minor" injuries from a car accident may no longer sue to recover damages for pain and suffering. Hodder v. United States , 328 F.Supp.2d 335, 348 (E.D.N.Y. 2004). Thus, in order to recover such damages, plaintiffs must establish that they have suffered a "serious injury." N.Y. Ins. Law § 5104(a); Molina v. United States , 301 F.Supp.2d 317, 320 (S.D.N.Y. 2004).
Section 5102(d) of the Insurance Law defines a serious injury as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of 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 ...