| Heller v Jansma |
| 2013 NY Slip Op 00630 [103 AD3d 1160] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| Tabitha Heller, Respondent, v Peter Jansma,Appellant. |
—[*1] Andrews, Bernstein & Maranto, LLP, Buffalo (Pasquale V. Bochiechio of counsel),for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.),entered February 3, 2012 in a personal injury action. The order denied in part defendant'smotion for summary judgment dismissing the complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs, the motion is granted in its entirety and the complaint isdismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries sheallegedly sustained in a motor vehicle collision with defendant, and defendant moved forsummary judgment dismissing the complaint on the ground that plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). Supreme Courtdenied that part of the motion with respect to the significant disfigurement andsignificant limitation of use categories and otherwise granted the motion. We agree withdefendant that the court should have granted the motion in its entirety.
Defendant met his initial burden of establishing that plaintiff did not sustain a seriousinjury under the significant disfigurement category of serious injury, and plaintiff failedto raise a triable issue of fact (see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). The alleged 1½-inch scar on plaintiff's shin isimperceptible in the photographs submitted by defendant in support of the motion(see generally Jordan v Baine, 241 AD2d 894, 896 [1997]) and, based upon thephotographs and other evidence in the record, we conclude that defendant met his initialburden of establishing that no reasonable person would regard the condition asunattractive, objectionable or the subject of pity or scorn (see generally Loiseau vMaxwell, 256 AD2d 450, 450 [1998]). Plaintiff's deposition testimony that she isbothered by the scar does not raise a triable issue of fact whether it constitutes asignificant disfigurement under the statute (see Ferguson v Temmons, 79 AD2d1090, 1091 [1981]).
Defendant also met his initial burden with respect to the significant limitation of usecategory of serious injury, concerning the alleged injury to plaintiff's cervical spine, andplaintiff failed to raise a triable issue of fact (see generally Zuckerman, 49 NY2dat 562). Defendant submitted the report of a physician who examined plaintiff on behalfof defendant stating, inter [*2]alia, that plaintiff suffereda cervicothoracic strain in the accident, a soft tissue injury from which she would beexpected to recover fully in a matter of days to weeks. The report further states that therewas no restriction in the range of motion of plaintiff's cervical spine, and that diagnostictesting revealed no objective evidence of injury related to the accident. In addition,defendant submitted plaintiff's deposition testimony in which she testified that shereturned to work a few days after the accident and resumed her other daily activitiesshortly thereafter. Those submissions were sufficient to establish prima facie thatplaintiff did not sustain a significant limitation of use in the accident (see Charley v Goss, 54 AD3d569, 570-571 [2008], affd 12 NY3d 750 [2009]). In opposition to themotion, plaintiff submitted the affidavit of her treating chiropractor, whose most recentexamination of plaintiff predated his affidavit by more than three years and thus wasinsufficient to raise a triable issue of fact (see Kreimerman v Stunis, 74 AD3d 753, 755 [2010];Trotter v Hart, 285 AD2d 772, 773 [2001]). Present—Centra, J.P.,Peradotto, Lindley, Whalen and Martoche, JJ.