Summary
In Edwards v De Haven (155 AD2d 757 [3d Dept 1989]), involving a scar near the left knee, a 3/4-inch indentation on the left calf and a four-inch jagged scar just above the right knee, and in Loiseau v Maxwell (256 AD2d 450 [2d Dept 1998]), involving a scar five centimeters in length and one centimeter in width on the lower part of the right leg, the Courts held that as a matter of law, a reasonable person viewing the plaintiffs' legs, would not regard the scars as unattractive, objectionable, or as the subject of pity or scorn.
Summary of this case from Arnold v. Boakye-AmeyawOpinion
November 9, 1989
Appeal from the Supreme Court, Broome County (Smyk, J.).
Plaintiff brought this action to recover for injuries alleged to have been sustained in an automobile accident, claiming "significant disfigurement" as the basis for satisfying the threshold requirement of "serious injury" (see, Insurance Law § 5102 [d]; § 5104 [a]). The action proceeded to a jury trial and Supreme Court, after personally viewing the scars which form the basis for plaintiff's claim of disfigurement, dismissed the complaint at the conclusion of plaintiff's case upon the ground that plaintiff had failed to establish a serious injury as a matter of law. Plaintiff appeals.
There should be an affirmance. Although the question of whether a plaintiff has suffered a serious injury is usually for the jury, it is incumbent upon the court to decide in the first instance if "reasonable people could differ as to whether plaintiff's scar was a `significant disfigurement'" (Prieston v Massaro, 107 A.D.2d 742, 743; see, Caruso v Hall, 101 A.D.2d 967, 968, affd 64 N.Y.2d 843). Here, plaintiff testified that she sustained a scar near her left knee, a 3/4-inch "indentation" on her left calf and a 4-inch "jagged" scar just above her right knee, and that the scars were "very apparent" and made her "self-conscious". However, our review of the record and exhibits, including a color photograph of the scar on plaintiff's left calf, leads us to conclude that Supreme Court properly determined that a reasonable person viewing plaintiff's body in its altered state would not regard the condition as unattractive, objectionable or as the subject of pity or scorn (see, Savage v Delacruz, 100 A.D.2d 707). Because plaintiff did not sustain her burden of establishing a prima facie case of serious injury at trial, the complaint was properly dismissed (see, supra, at 708; see also, Caruso v Hall, supra, at 968-969).
We have not been furnished with photographs of the scars on or near plaintiff's knees. Plaintiff's failure to make a record of their appearance prevents us from determining the merit of her claim that these scars were significantly disfiguring (see, Lewis v General Elec. Co., 145 A.D.2d 728, 729; Slater v Town of Rochester, 31 A.D.2d 590). Thus, in our view, this claim has been abandoned.
Judgment affirmed, without costs. Kane, J.P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.