Whether the Magistrate Judge erred in granting a Rule 50(a) motion for directed verdict

QUESTIONS PRESENTED The U.S. District Court for the Southern District of New York, by Magistrate Judge Lisa Margaret Smith, dismissed petitioners’ personal injury claim on a Rule 50(a) motion for dismissal after petitioners’ case was presented, based upon an unsettled body of New York State common law, and unsettled interpretations of the New York State Insurance Law, regarding “permanency” of injury. The lower courts permitted the Magistrate Judge to cherry pick between two competing bodies of state law on a diversity case, on an erroneous concept of a Rule 50(a) motion for directed verdict based upon facts that were not properly viewed in the light most favorable to the non-moving party. The questions before the Court are: 1. Whether the Magistrate Judge erred as a matter of law in granting a Rule 50(a) motion for directed verdict when (a) both parties’ experts agreed that petitioners were permanently injured; (b) the state law supports Petitioners’ position. 2. Whether, given the state law split, should the courts have permitted the case to be decided by the jury or refer it to the highest court for settlement of the conflicting case law. 3. Whether the federal court has no power to invalidate one branch of state case law created by trial and intermediate appellate courts, while sitting in diversity. ii Of the two competing strands of case law, interpreting statutory law, by the New York state intermediate courts (and the highest court, the New York Court of Appeals having yet to settle the law), the first branch holds that a meniscus tears, requiring surgery, are "serious" injuries under the Insurance Law. See, e.g., Gutierrez v. City of New York, 2011 NY Slip Op 34140 (U) (N.Y. Sup. Ct. November 11, 2011) and Vig v. The New York Hairspray Co., LP, 67 A.D.3d 140 (1st Dept. 2009). The meniscus tear-plus-surgery concept, as being deemed permanent was more thoroughly discussed in Johnson v. Singh, 2009 NY Slip Op 52807 (U) (N.Y. Sup. Ct. October 21, 2008), then Supreme Court Justice Nelson Roman (now of the USDC, SDNY), in an analogous case on "all fours" with this case, held that a meniscus tear requiring surgery "alone is sufficient to establish the existence of serious injury." Judge Roman's comprehensive discussion of the "serious injury" threshold cited both First and Second Department cases, and states that it is "well-settled" law in New York that mensicus tears are serious injury: . .. However, with regard, to meniscus tears, it is well settled that evidence of a meniscus tear requiring surgery raises an issue of fact as to the existence of a serious injury. Noriega v. Sauerhaft, 5 AD3d 121 (ist Dept. 2004); Rangel-Vargas v. Vurchio, 289 AD2d 92 (1st Dept. 2001); Pollas v. Jackson, 2 AD3d 700 (2nd Dept. 2003). ... iii Id. at 14(emphasis added) See also Armstrong v. Quinto, 2012 NY Slip Op. 32335 (N.Y. Sup. Ct. August 8, 2012) (non-surgery case where meniscus tear was serious injury); Manilla-Chalas v. Familia, 2015 NY Slip Op. 31648 (U) (N.Y. Sup. Ct. January 9, 2015) (rotator cuff injury requiring surgery was serious injury, even where plaintiff did not complain of should injury at time of collision). Despite the authoritative intermediate and trial court decisions from New York State, which includes nowDistrict Judge Nelson Roman’s holding, the Magistrate Judge below cherry picked a conflicting strand of state case law and cited to Resek v. Morreal, 74 A.D..3d. 1048 (N.Y. App. Div. 2nd Dept. 2010), and McCloud v. Reyes, 82 A.D.3d. 848 (N.Y. App. Div. 2nd Dept.. 2011), to support the Magistrate Judge’s thesis that plaintiffs’ even if true, did not present a jury case of “permanency.” Irrespective of any circuit split, the Court’s review is necessary and proper under the Court’s Internal Rule 10(a), clause 3: Rule 10. Considerations Governing Review on Writ of Certiorari Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for