PLAINTIFF'S SCAR NOT SUFFICIENT TO MAINTAIN CAR ACCIDENT CLAIM FOR "SERIOUS INJURY"; FRACTURE NOT PROVEN

Court: Supreme Court, Appellate Division, First Department, New York

Case: Peter Brackenbury v. Edward W. Franklin, Jr.

Date: March 1, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

**************************************************

RELATED POSTS:

DEFENSE MOTION FOR SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD DENIED BECAUSE IT MISSES AN INJURY (Posted by Brooklyn injury attorney Gary E. Rosenberg on Mar 2, 2012)

NO SUMMARY JUDGMENT TO DEFENSE ON NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION; CAR ACCIDENT VICTIM HAD KNEE SURGERY 4 MONTHS POST-ACCIDENT (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 7, 2011)

ACCIDENT VICTIM DEFEATS "THRESHOLD" SUMMARY JUDGMENT MOTION; CASE DOESN'T SAY WHY (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 22, 2011)

**************************************************

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 20, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's application for leave to amend or supplement his bill of particulars to assert a claim of serious injury under the categories of "significant disfigurement" and "fracture" of Insurance Law Sec. 5102(d), unanimously affirmed, without costs.

Photographs of plaintiff's healed, thin scar on his hand were not sufficient to establish an issue of fact as to whether plaintiff sustained a "significant disfigurement" as a result of the accident. Similarly, plaintiff failed to present evidence sufficient to establish a prima facie claim based on a fracture of his fourth metacarpal. No fracture was diagnosed by his doctor contemporaneous with the accident, and the doctor's equivocal observation of a "[p]robable healed fracture" in an X ray taken a year and a half after the accident is insufficient (see Glover v. Capres Contr. Corp., 61 A.D.3d 549, 550-551, 877 N.Y.S.2d 75 [2009]; O'Bradovich v. Mrijaj, 35 A.D.3d 274, 827 N.Y.S.2d 38 [2006]).

Categories