Defendants Platform Taxi Service, Inc. move for an on order, pursuant to CPLR 3212, dismissing the Verified Complaint of plaintiff Sheryl Azevedo, on the ground that she did not sustain a “serious injury” within the meaning of Insurance Law §5102 (d) as a result of the February 21, 2007 accident. Plaintiff alleges “serious injury” under the “significant disfigurement” category in Insurance Law §5102 (d), based upon facial scarring.
A Lawyer said that, in support of their motion, defendants submit the affirmed report of plastic surgeon Robert D. Goldstein, M.D., who examined Plaintiff, and a copy of the transcript of Plaintiff’s examination before trial. The results of Dr. Goldstein’s examination are stated in their entirety as follows: “Physical examination with specific reference to the area of scarring shows that there is no perceptible residual scarring of the upper lip. On the bridge of the nose, there is an inferior area of white hypopigmentation measuring 1.25 x 0.5 cms, and above this there is a linear scar that measures 1.4 cms. There is no disability associated with these areas of scarring.
A source in Nassau and Suffolk said that, since Dr. Goldstein does not state that the photographs accurately represent that which they purport to depict, they are inadmissible as evidence. In any event, photographs taken three years after the accident, when they are the only photographs submitted, would provide a potentially unbalanced representation of the plaintiff’s injury on the question of significant disfigurement, particularly since even temporary disfigurement may qualify as a serious injury. Indeed, Dr. Goldstein states that he reviewed copies of 3 black and white photographs from St. Vincent’s Hospital, but the contemporaneous photographs are not provided to the Court for consideration on this motion.
The issue in this case is whether plaintiff suffered “serious injury” within the meaning of Insurance law, as the result of the car accident.
The Court held that 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. The dimensions, hue, texture, and particularly the location, of scarring will, of course, influence whether it constitutes a “significant disfigurement,” as well as the likelihood that the appearance of a scar could be improved by treatment.
The Court said that, facial scarring requires close evaluation. It is the type of injury which should not be dismissed without viewing the injury. A residual imperfection may not be as significant on other portions of the anatomy as it may be upon the face or other exposed areas. A court, in evaluating the gravity of the disfigurement to determine whether as a matter of law the marring qualifies as a significant disfigurement within the threshold requirements of the No-Fault Law, must consider all relevant factors. These should include the location of the injury, the age, sex and occupation of the victim, other scars of disfigurement, blemishes, imperfections caused by birth injury or the result of pox or acne and any other distinguishing features which will detract from the person’s appearance as it existed prior to the date of the accident.
In this case, defendants describe Plaintiff’s occupation at the time of the accident as an entertainer at a Gentleman’s Club, Flash dancers. Facial scars an inch or less in length have been found to qualify as a significant disfigurement, but have also been found not to qualify. 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.
The Court held that, defendants have failed to make a prima facie showing that “significant disfigurement” within the meaning of Insurance Law did not result from the accident. There is no admissible photographic evidence of Plaintiff’s appearance either soon after the car accident or at a later point, although photographs taken at the hospital were apparently in Defendants’ possession and provided to its examining doctor. Dr. Goldstein does not address the visibility of the scar on the bridge of Plaintiff’s nose, nor does he address the possibility of improvement with treatment. Dr. Goldstein’s opinion that there is no disability associated with these areas of scarring is opaque at best, without stated foundation, and appears irrelevant to a claim of “disfigurement.”
Moreover, Defendants do not address the relevant factors of this case, including the age, sex and occupation of the victim. Although Defendants appropriately review case law explicating the meaning of “significant disfigurement”, there is no articulated correspondence to the facts of this case, including, perhaps most importantly, Plaintiff’s occupation.
On this important issue, the Court has noted Defendants’ Affirmation in Reply, addressing allegations found in affidavits submitted by Plaintiff in opposition, but which, as properly noted by Defendants, are not in admissible form. Defendants’ suggestion that allegations as to the effect of scarring on Plaintiff’s occupation fails to account for other factors such as the fact that she has aged, weight gain/loss, or the effects of the economy on people’s ability to frequent Gentlemen’s Clubs is not shown to have any evidentiary support in the record.
Counsel’s further statement that most Gentlemen’s Clubs tend to be dark, and for the most part, the customers are not interested in discussing world events with exotic dancers is presumably not based upon personal knowledge.
Thus, in matters of culture and aesthetics, the distinction between summary judgment and trial is particularly important. Hence, the Court denies the defendant’s motion.
If you have been involved in a car accident which causes you serious injuries, you need the help of a Kings Injury Attorney. At Stephen Bilkis and Associates, our Kings Spinal Injury Attorneys can assist you and provide you with all the legal remedies that you can avail in Court.