Opinion
46533/07.
Decided July 7, 2009.
Law Office of Richard M. Kenny, New York City (James M. Sheridan, Jr. of counsel), for plaintiff.
Baker, McEvoy, Morrissey Moskovits, P.C., New York City (Joshua Cash of counsel), for Camel Trans Corp. and Tahir Islam, defendants.
Defendants Camel Trans Corp. and Tahir Islam seek an order, pursuant to CPLR 3212, dismissing the Verified Complaint of plaintiff Joseph Jordan on the ground that he did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) as a result of a November 1, 2005 accident. In support of their motion, Defendants submit the affirmed reports of dentist Evan Temkin, D.M.D. and otolaryngologist Josh L. Weber, M.D., who each examined Plaintiff on November 4, 2008; Plaintiff's deposition testimony, taken on September 23, 2008; and a single photograph of Plaintiff's mouth and chin.
In his Verified Bill of Particulars, Plaintiff alleges as "serious, permanent injuries" "lacerations to chin and lower lip requiring eight sutures for interior lower lip and five sutures for chin with resultant scarring," and "reversible pulpitis front teeth requiring occlusal equilibration." Among others, Plaintiff alleges a "serious injury" under the "significant disfigurement" category in Insurance Law § 5102 (d).
Dr. Temkin concludes that "from a dental perspective, there is no disability related to the [November 1, 2005] accident;" and Dr. Werber finds "no functional disability as a result of the scars, which by definition are permanent in nature." Although Dr. Werber states that he "performed an independent ENT medical examination," he does not describe such an examination or report any objective findings.
As for the scarring, Dr. Werber describes "an 8 mm scar at the mucocutaneous junction of the right lower lip" and "an irregular 10 mm scar on the chin." Both scars are "healed," and "fading can be expected over time."
Interestingly, Dr. Temkin reports "no facial scars," but notes "complaints . . . likely related to the location of the lacerations and placement of sutures." Although Dr. Temkin states that "a consult with a plastic surgeon would be appropriate," there is no indication in Defendants' motion papers that any such consult was obtained.
The single photo of Plaintiff's mouth and chin is attached to Defendants' papers with Dr. Werber's report, but the photo does not appear to be from the "[p]hotographs taken shortly after the alleged injury occurred" that Dr. Werber states he reviewed. Counsel's affirmation does not state when, by whom, or the circumstances under which, the attached photo was taken, and there is no sworn or affirmed statement that the photograph is a fair and accurate representation of Plaintiff's appearance at any point in time. "A photograph is generally admissible as a depiction of a fact in issue upon proof of its accuracy by the photographer or upon testimony of one with personal knowledge that the photograph accurately represents that which it purports to depict." ( Corsi v Town of Bedford , 58 AD3d 225 , 228-29 [2d Dept 2008].) Here, the photo is inadmissible, and is not accompanied by any information that would allow the Court to assess its probative value on this motion.
In any event, a single photo would provide a "potentially unbalanced representation of the plaintiff's injury" on a question of "significant disfigurement." ( See Marchiano v Mason, 179 AD2d 739, 740 [2d Dept 1992].)
Nor do Defendants give any explanation for not submitting the "[p]hotographs taken shortly after the alleged injury occurred" that Dr. Werber reviewed as part of his assessment of Plaintiff's injuries. At the least, the photos would have provided additional context for Dr. Werber's findings and opinions. Moreover, even "temporary disfigurement" may qualify as a "serious injury." ( See Caruso v Hall, 101 AD2d 967, 968 [3d Dept 1984], aff'd 64 NY2d 843; Pecora v Lawrence , 28 AD3d 1136 , 1137 [4th Dept 2006].)
Defendants correctly contend that Plaintiff does not allege facts in either his Verified Bill of Particulars or his deposition testimony that would qualify his injury as "serious" under the 90/180 days disability category. Defendants fail to note Plaintiff's testimony that he is self-conscious about the scarring on his face, and that it limits his social life. Plaintiff was a 16-year-old high school junior at the time of the accident.
"The standard by which significant disfigurement is to be determined . . . is whether a reasonable person would view the condition as unattractive, objectionable, or as a subject of pity or scorn." ( Landsman v Bunker, 142 AD2d 986, 986 [4th Dept 1988]; see also Lynch v Iqbal , 56 AD3d 621 , 622 [2d Dept 2008]; Prieston v Massaro, 107 AD2d 742, 743 [2d Dept 1985].) The dimensions, hue, texture, and particularly the location, of scarring will, of course, influence whether it constitutes a "significant disfigurement." The number of sutures required to close a laceration might be noted ( compare Onder v Kaminski, 303 AD2d 665, 666 [2d Dept 2003] ["a ragged laceration of the left brow and forehead . . . required 24 sutures"] with Koppelman v Lepler, 135 AD2d 507, 508 [2d Dept 1987] ["no sutures had been required to repair [the] laceration" near plaintiff's eye]), as well as the likelihood that the appearance of a scar could be improved by treatment ( see Abdulai v Roy, 232 AD2d 229, 229 [1st Dept 1996].)
Facial scars an inch or less in length have been found to qualify as a "significant disfigurement" ( see Onder v Kaminski, 303 AD2d at 666; Abdulai v Roy, 232 AD2d at 229; Prieston v Massaro, 107 AD2d at 743), but have also been found not to qualify ( see Sirmans v Mannah, 300 AD2d 465, 466 [2d Dept 2002]; Koppelman v Lepler, 135 AD2d at 508; Petrivelli v Walz, 227 AD2d 735, 736 [3d Dept 1996]; Spevak v Spevak, 213 AD2d 622, 622-23 [2d Dept 1995].) Clearly, quantifiable criteria are of limited use on matters of personal aesthetics, influenced as they are by the age, gender, and cultural dispositions of the plaintiff and the fact-finder.
Here, Defendants have failed to make a prima facie showing that "significant disfigurement" within the meaning of Insurance Law § 5102 (d) did not result from the November 1, 2005 accident. There is no admissible photographic evidence of Plaintiff's appearance either soon after the accident or at any later point. Although Dr. Temkin's statement that he observed "no facial scars" is some evidence as to the visibility of scarring, Dr. Temkin also recommended a consult with a plastic surgeon, which apparently was not obtained. Dr. Werber's description of only the length of the two scars, with his unsupported opinion that "fading can be expected over time," are insufficient in themselves to establish, even prima facie, that there has been no "significant disfigurement" in light of all of the evidence submitted by Defendants.
Given the nature of the injury, attention to the distinction between summary judgment and trial is particularly appropriate. ( See Caruso v Hall, 101 AD2d at 968, 969.)
Defendants' motion is denied.