The cause of action is for personal injuries sustained by the plaintiff in a motor vehicle accident that occurred in front of 980 Madison Avenue in New York County when the taxi in which she was a passenger struck another vehicle. Plaintiff’s face came into contact with the divider between the rear seat and front seat inside the vehicle.
Defendants move for the dismissal of plaintiff’s compliant on the ground that she has not sustained a serious injury as defined under Insurance Law.
A witness said, that the injuries alleged to have been sustained by the plaintiff as listed in her bill of particulars, include, a two centimeter laceration below her nose which has left a permanent scar, cervical strain, upper thoracic strain, headaches, “ADHD-like symptoms; generalized anxiety disorder; depression.” In support of their motion, defendants annex a copy of plaintiff’s deposition testimony. In addition, defendants submit the affirmed report of Robert D. Goldstein, M.D., a plastic and reconstructive surgeon who examined the plaintiff Dr. Goldstein reports shows that there is a 1.5 cm transversely oriented scar in the upper lip. This scar is of good cosmetic quality and does not show any evidence of hypertrophy or keloid formation.
In addition, defendants submit the affirmed report of Solomon Miskin, M.D., a neurologist and psychiatrist who examined the plaintiff. Dr. Miskin reports that plaintiff’s complaints at the time of the examination had to do with her attention, focus and concentration. Dr. Miskin conducted a mental status examination of the plaintiff and his diagnosis was: “No psychiatric diagnosis, Status post postpartum depression predating the incident resolved.”
Plaintiff submits a cross-motion wherein she moves for partial summary judgment on the issue of liability and opposes defendants’ motion for summary judgment. In support of her assertion that she sustained a serious injury, plaintiff refers to her deposition testimony wherein she stated that since the accident her executive functions, sort of calendar planning, sequential planning, desk work that I do at home, decisions, focus is hard. I am not focused. It is hard for me to use those executive functions. Plaintiff further argues that she suffered a mild traumatic brain injury enough to cause permanent cognitive problems. With respect to the scar, plaintiff testified that she consulted a plastic surgeon in Washington who advised her to let more time pass before considering surgery.
The issue in this case is whether plaintiff suffered serious injury due to the accident, warranting the liability of the defendants.
The Court finds that the evidence submitted by the defendants satisfied their initial burden of demonstrating that plaintiff did not sustain a serious injury.
Under the “no-fault” law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has been sustained. New York Insurance Law defines serious injury as, a personal injury which results in 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 party 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 eighty days immediately following the occurrence of the injury or impairment.
On a motion for summary judgment, a defendant has the burden of proving that the plaintiff’s injuries were not serious. In order for a defendant to establish that the plaintiff failed to sustain a serious injury within the meaning of the statute, the defendant must submit affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claim. Once the defendant has sufficiently raised the issue of whether a serious injury has been sustained, the burden shifts to the plaintiff to, come forward with evidence to overcome the defendant’s submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of Insurance Law. Once the burden shifts, it is incumbent upon plaintiff to produce prima facie evidence in “admissible form” to support the claim of serious injury. Unsworn reports of plaintiff’s examining doctor will not be sufficient to defeat a motion for summary judgment.
The Court finds that plaintiff has failed to raise an issue of fact as to whether or not she sustained a serious injury pursuant to Insurance Law.
First, the numerous unsworn reports of Westchester doctors that plaintiff saw when she returned to Washington and the medical records from Lenox Hill Hospital are not in admissible form and cannot be used to defeat a motion for summary judgment.
The sworn medical report and affirmation of Dr. Finkel is insufficient to defeat the motion for summary judgment. Dr. Finkel makes conclusions about plaintiff having permanent damage to parts of her brain as a result of the subject motor vehicle accident and about her having difficulty with words, language and organizational skills. In his report, Dr. Finkel refers to an examination he conducted to reach his conclusion. However, he does not indicate what abnormal findings he made in his examination, only one of which involved her memory and the result of which was completely normal. Moreover, he does not state what objective tests he used to determine that plaintiff was having difficulty with words, language and organizational skills. Therefore, his findings are conclusory and based on plaintiff’s subjective complaints which are insufficient to establish a prima facie case of serious injury.
The sworn report of Dr. Amen is also insufficient for plaintiff to defeat the motion for summary judgment. Dr. Amen reports the results of plaintiff’s brain scan and though he concluded that there was “clearly past brain trauma,” he did not attribute this brain trauma to the subject motor vehicle accident. This is particularly significant because Dr. Finkel, in his report, states that he was informed by the plaintiff that when she was in high school, she struck her head and was briefly rendered unconscious.
In short, Dr. Amen’s failure to causally link his findings in the brain scan of the plaintiff to the subject motor vehicle accident and not to some other occurrence in plaintiff’s past such as the head injury she suffered in high school renders his report insufficient to defeat defendants’ motion for summary judgment.
With respect to the scar on plaintiff’s face, the Court said that it is well established that the question to be asked in determining whether a scar constitutes significant disfigurement is whether a reasonable person viewing the injury would regard the condition as unattractive, objectionable or as the subject of pity or scorn. Plaintiff does not indicate when the color photographs annexed to her affidavit which show the scar above her lip, were taken. Plaintiff’s physician, Dr. Finkel, described the scar as being 2 cm in length whereas the independent physician retained by defendants, Dr. Goldstein, described the scar as being 1.5 cm in length and of good cosmetic quality.
In view of the foregoing, the Court finds that a view of the photographs submitted by the plaintiff do not depict a scar that would constitute a significant disfigurement and thus, a serious injury. Accordingly, defendants’ motion for summary judgment dismissing plaintiff’s complaint is granted. Plaintiff’s cross-motion for summary judgment on the issue of liability is hereby deemed moot as plaintiff’s complaint is dismissed.
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