| Licygiewicz v Stearns |
| 2009 NY Slip Op 03082 [61 AD3d 1254] |
| April 23, 2009 |
| Appellate Division, Third Department |
| Diana Licygiewicz, Appellant, v Melvin F. Stearns,Respondent. |
—[*1] James M. Brooks, Lake Placid (Mandy McFarland of Thorn, Gershon, Tymann & Bonnani,L.L.P., Albany, of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Dawson, J.), entered February 1, 2008in Essex County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff's left thumb was dislocated in a motor vehicle accident and required surgicalreduction. Alleging that this was a serious injury within the meaning of Insurance Law §5102 (d), she commenced this personal injury action. Supreme Court granted defendant's motionfor summary judgment dismissing the complaint, and plaintiff now appeals.
In support of his motion, defendant proffered plaintiff's deposition testimony and the recordsand reports of her treating physicians. According to those records, plaintiff's orthopedic surgeonconcluded that, after she recovered from the surgery necessary to reduce the dislocation, therewas only a minimal limitation of the flexion of her thumb and she had regained full functionaluse of her nondominant left hand. Thus, even if permanent, this limitation would not constitute aconsequential or significant limitation of use. As for the 90/180-day category claim, defendantcited plaintiff's deposition testimony in which she admitted that her injury had not significantlyimpaired her work, recreation or other customary activities. As for the claim of significantdisfigurement, defendant submitted color photographs of plaintiff's thumb and [*2]referred to her medical records to show that she had a barelyperceptible, thin, pale scar and two small bumps from her surgery. This proof was sufficient toshift the burden to plaintiff to raise a material question of fact as to the existence of a seriousinjury (see e.g. Baker v Thorpe, 43AD3d 535, 536-537 [2007]).
To meet her burden, plaintiff relied on affirmations by her orthopedic surgeon and plasticsurgeon. The affirmations, however, were not based on recent examinations of plaintiff (see Wolff v Schweitzer, 56 AD3d859, 861 [2008]; Chunn vCarman, 8 AD3d 745, 746 [2004]; Davis v Evan, 304 AD2d 1023, 1025[2003]), and their conclusory statements that she has a consequential and significant limitation ofthe use of her thumb merely parrot the statutory language (see Wilber v Breen, 25 AD3d 836, 836-837 [2006]; Bent v Jackson, 15 AD3d 46, 50[2005]; June v Gonet, 298 AD2d 811, 812 [2002]). While plaintiff's submissionsdemonstrate that her limitation is permanent, they do not show that the limitation is more thanmild, minor or slight (see e.g. Flisch vWalters, 42 AD3d 682, 684-685 [2007]; Palmer v Moulton, 16 AD3d 933, 935 [2005]).
Plaintiff also failed to raise a triable issue of fact regarding the 90/180-day category, sinceshe acknowledged during her deposition that she missed less than a week of school due to theinjury and had full use of her hand within two months (see Clements v Lasher, 15 AD3d 712, 713-714 [2005]; Dongelewic v Marcus, 6 AD3d943, 944-945 [2004]). Nor is her claim that her surgical scar constitutes a significantdisfigurement supported by a review of either the photographs or the descriptions contained inthe medical records (see Baker v Thorpe, 43 AD3d at 537; Johnson v Grant, 3 AD3d 720,721 [2004]).
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.